High Court Stops Prosecution of Lawyer in Sh1 Billion Land Case Linked to Rigathi Gachagua
A Nairobi advocate has won major legal relief after the High Court quashed plans to charge him in connection with a Sh1 billion land dispute allegedly involving property linked to former Deputy President Rigathi Gachagua.
The court halted criminal proceedings against advocate Moses Owour, who had been arrested alongside his client, former land official Michael Ohas, James Othieno Ohas, and Benard Ogechi.
Arrest at Court Sparks Legal Battle
Owour was arrested on June 16, 2023, within the precincts of Milimani Law Courts, where he was representing Ohas in a land ownership dispute. Police officers detained him and took him to basement cells, an action the court later described as unlawful.
In a detailed judgment, Justice Chacha Mwita—now a judge of the Court of Appeal—quashed the entire criminal process against the lawyer and his co-petitioners.
The court further barred the Directorate of Criminal Investigations and the Directorate of Public Prosecutions from arresting or prosecuting them over matters arising from the disputed land.
Court: Criminal Case Interfered With Pending Land Suit
Justice Mwita held that the investigations into alleged document forgery interfered with a matter already pending before the Environment and Land Court (ELC), which had jurisdiction to determine ownership of the property.
The judge said the decision to arrest and attempt to prosecute Owour while he was discharging professional duties amounted to a violation of his constitutional rights.
“There was no basis for arresting lawyer Owour within the court precincts with a view to prosecuting him, given that he was discharging professional duties as opposed to having deliberately committed a criminal offence,” Justice Mwita ruled.
Abuse of Power and Criminal Justice System
In the 78-page judgment, the court found that the conduct of police officers was unlawful and reproachable, describing the arrest as unfair, unreasonable, irrational, and an abuse of power.
Justice Mwita said the move threatened Owour’s fundamental rights under Articles 47 and 50(1) and (2) of the Constitution, which guarantee fair administrative action and the right to a fair trial.
The judge added that the DPP could not support the police action without compromising the rights of Owour’s clients, since the ownership dispute was still before the ELC.
No Damages Awarded
Despite finding that Owour’s rights had been violated, the court declined to award damages.
“I am not persuaded that compensation is justified. There was only an attempt to charge him and no prosecution followed,” the judge said.
Limits of Parallel Criminal and Civil Cases
Justice Mwita acknowledged that Section 193A of the Criminal Procedure Code allows parallel civil and criminal proceedings arising from the same facts. However, he stressed that such proceedings should not prejudice parties in ongoing civil cases.
In this matter, the judge said, the ELC had to determine whether the documents were fraudulent and how the property was acquired. Prosecuting a criminal case before that determination would unfairly favour one party.
“Labelling documents as forged while the ELC is seized of the matter would be prejudicial and may surreptitiously aid one side of the dispute,” the judge observed.
Charges Lawyer Faced
Owour told the court that he was not informed of the charges at the time of arrest, nor was he allowed to record a statement. He said he only learned of the charges after his lawyers obtained a charge sheet shortly before plea-taking.
The charges alleged:
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Forgery contrary to Section 357(a) of the Penal Code
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Uttering a false document contrary to Section 353 read with Section 349 of the Penal Code
The court noted that all documents cited in the charges were filed by Owour in the ELC while acting in his professional capacity as an advocate for Ohas and Columbus Two Thousand Limited.