The Moi spy who ended up in de­ten­tion af­ter a sud­den fall from grace to grass

De­spite be­ing a top cop and even Moi’s busi­ness part­ner, Mwangi Muri­ithi was sacked for no ap­par­ent rea­son

Daily Nation (Kenya) - - NATIONAL NEWS -

Be­fore he fell from grace, Mr Stephen Mwangi Muri­ithi had as­sumed that he was an ally of Pres­i­dent Moi. Af­ter all, he was the deputy di­rec­tor of in­tel­li­gence — a po­si­tion that gave him ac­cess to the top se­cret in­ven­tory.

For the last few years, how­ever, the age­ing Muri­ithi has been fight­ing in court cor­ri­dors seek­ing jus­tice, with lit­tle luck. But there is a bit of his­tory that fol­lows this old man that has not been ap­pre­ci­ated. He was ac­tu­ally the first Kenyan to ques­tion the wide pres­i­den­tial pow­ers en­joyed by Pres­i­dent Moi in the old con­sti­tu­tion, and he paid for it; to­gether with his lawyer, John Kham­inwa.

As the deputy of James Kany­otu — the un­os­ten­ta­tious and self-ef­fac­ing di­rec­tor of in­tel­li­gence — Muri­ithi was in a po­si­tion that put him close to power, un­til May 1982 when he was ar­rested and de­tained with­out trial. The ac­tual rea­son: no­body knows. What we know is that Moi, Kany­otu and Muri­ithi owned equal shares in a com­pany by the name Mokamu Lim­ited, a com­bi­na­tion of the first two let­ters of their names. They also had shares in Four­ways In­vest­ment which then owned a prime build­ing at the junc­tion of Muindi Mbingu Street and Mok­tar Dad­dah Street — now known as Fam­ily Bank tow­ers. The only other share­holder was Nairobi busi­ness­man Sadru Alib­hai, the Golden Bis­cuits brand baron — and who in 1985 bought the Peu­geot fran­chise in Kenya from Mar­shalls Uni­ver­sal PLC for Sh55 mil­lion. (Fast-for­ward to 1988, Alib­hai sold his com­pany to Ke­tan So­maia, a 26-year-old Kisumu shop­keeper, and now in jail in UK, who was be­ing used as a front by Hezekiah Oyugi, the pow­er­ful per­ma­nent sec­re­tary for In­ter­nal Se­cu­rity.)

That is how close Mr Muri­ithi was to Moi — or so, he thought. It was a per­fect mix of busi­ness, pol­i­tics and money. Moi had earned his pres­i­dency by feign­ing an un­der-dog sta­tus and al­low­ing the likes of Charles Njonjo, Dr Njoroge Mun­gai, and Mbiyu Koinange to un­der­es­ti­mate his lethal strike.

Many, in­clud­ing Mr Muri­ithi, thought that Moi was a po­lit­i­cal pushover; a softie — or what they used to say be­hind his back “a pass­ing cloud”.

This is the pe­riod when, long be­fore any civil ser­vant could dare to chal­lenge Pres­i­dent Moi, Mr Muri­ithi dared to de­cline a trans­fer from the Spe­cial Branch to be­come the Gen­eral Man­ager of the trou­bled and strug­gling Up­lands Ba­con Fac­tory in Lari. Mr Muri­ithi was irked, nay piqued, for this ef­fec­tively ended his 23-year ca­reer in the po­lice.

Rather than take up the po­si­tion, and in an un­prece­dented move, the Ny­eri-born sleuth went to court to ar­gue that Pres­i­dent Moi had no pow­ers to re­move him from the po­lice ser­vice. He ar­gued that those pow­ers rested with the Pub­lic Ser­vice Com­mis­sion. Legally, he was right; but po­lit­i­cally, he had made a goof.

It had all started on April 14, 1981 when Mr Muri­ithi re­ceived a let­ter from Mr Kany­otu ask­ing him to hand over govern­ment prop­erty and to take up a new post at Up­lands Ba­con Fac­tory. At best, it was a de­mo­tion, and at worst a chance to get rid of him.

Po­lit­i­cal pun­dits say that the fall of Muri­ithi was con­nected to a re­venge mis­sion un­der­taken by Charles Njonjo, the Min­is­ter for Con­sti­tu­tional Af­fairs, fol­low­ing the drag­ging of his name into the Muthemba Af­fair. He blamed Muri­ithi for it.

Mr Muri­ithi had led the in­ves­ti­ga­tions that led to the March 19, 1981 ar­rest of a Nairobi busi­ness­man, An­drew Mun­gai Muthemba, a dis­tant rel­a­tive of Mr Njonjo, who was charged with at­tempt­ing to over­throw the govern­ment. It was an in­trigu­ing case that At­tor­ney-gen­eral James Karugu and Chief Pub­lic Pros­e­cu­tor Sharad Rao sought an ur­gent ap­point­ment with Moi on how to han­dle it. Mr Rao was Njonjo’s friend; Mr Karugu was not.

The two, it is now known, had dis­agreed on what to do with Mr Muthemba’s flir­ta­tion with some mil­i­tary per­son­nel. What was known at that time was that be­tween De­cem­ber 15, 1980 and Fe­bru­ary 23, 1981, Mr Muthemba had tried to get Cor­po­ral Joseph Njiru Shimba to steal 10 hand grenades, 10 re­mote con­trolled de­vices, and an un­spec­i­fied num­ber of air­craft bombs. He had also tried to get Cap­tain Ricky Waithaka Gi­tucha to steal 100 grenades, mor­tars, ma­chine guns and am­mu­ni­tion, ri­fles, plas­tic ex­plo­sives, bomb timers, and re­mote con­trolled de­vices.

Whether the re­moval of Muri­ithi and the res­ig­na­tion of At­tor­ney­gen­eral James Karugu in June 1981 was re­lated is not clear. While Karugu qui­etly left, Muri­ithi reached out to, per­haps, the only lawyer will­ing to take up his case: John Kham­inwa, then 46.

Mr Kham­inwa had per­son­ally ap­proached Jus­tice Eu­gene Co­tran, one of the few Jewish judges in Nairobi, and told him he had an ur­gent ap­pli­ca­tion to make, ac­cord­ing to court records. He wanted the judge to make a tem­po­rary declara­tory or­der re­in­stat­ing Mr Muri­ithi back to the po­lice ser­vice. It was also to de­clare his pur­ported re­tire­ment null and void. But the case was taken up by Jus­tice Han­cox, lead­ing to a court tus­sle on why the Chief Jus­tice trans­ferred the file from Jus­tice Co­tran.

Mr Kham­inwa, in his ob­jec­tion to Jus­tice Al­lan Han­cox tak­ing over the case, al­leged that the mat­ter was fixed be­fore Co­tran and the file “wrongly trans­ferred from him as a re­sult of a tele­phone con­ver­sa­tion” said to have taken place with the Chief Jus­tice Sir Al­fred Simp­son from the Judge’s cham­bers. By then puisne judges of the High Court were ap­pointees of the pres­i­dent and even though the Ju­di­cial Ser­vice Com­mis­sion could rec­om­mend an ap­point­ment — such an ap­point­ment was not legally bind­ing. Thus, for­eign judges al­ways had to toe the pres­i­den­tial line to se­cure their con­tracts.

It is not known why Jus­tice Simp­son de­cided to take the case from Jus­tice Co­tran to Jus­tice Han­cox — but this would later be­come a ju­di­cial trend dur­ing Moi’s reign where po­lit­i­cal cases would be heard by some select judges; who al­ways ruled in favour of the govern­ment.

Thus, when he ap­peared be­fore Jus­tice Al­lan Han­cox, Mr Kham­inwa ar­gued that Mr Muri­ithi’s re­tire­ment should have been through the Com­mis­sioner of Po­lice, Ben Gethi, and not from Mr Kany­otu. Mr Kham­inwa ar­gued that the ef­fect of com­pli­ance with that let­ter would be that Mr Muri­ithi loses all his rights as a po­lice of­fi­cer.

At­tor­ney-gen­eral Charles Njonjo had sent Mr Frank Shields — then a State Coun­sel — and he ar­gued that “the Govern­ment has a per­fect right to ask for the re­turn of its prop­erty which is only given to the plain­tiff for the pur­pose of the per­for­mance of his du­ties.” He also ar­gued that a pri­vate in­di­vid­ual “has no right” to sue the govern­ment.

“When those du­ties end, then they have,” ar­gued Mr Shield — and Jus­tice Han­cox seemed to agree with him.

“Mr Shields is ab­so­lutely right and there is no such rem­edy against the Govern­ment as a tem­po­rary or­der declara­tory of the par­ties’ rights,” he said clos­ing doors on Mr Muri­ithi’s bid for re­in­state­ment.

Un­de­terred, he de­cided to chal­lenge the rul­ing at the Court of Ap­peal, but be­fore it was heard, Mr Muri­ithi was de­tained; thus be­com­ing the first per­son to be de­tained with­out trial by Pres­i­dent Moi, who had in 1979 promised to do away with such un­der­hand moves to si­lence crit­ics.

The de­ten­tion of Mr Muri­ithi — fol­lowed closely by Mr Kham­inwa — caught ev­ery­one by sur­prise. It had re­vealed the dark side of the Nyayo regime: in­tol­er­ance.

Mr Muri­ithi was at his house on May 22, 1982 when po­lice drove in shortly af­ter 9.30 am. He was asked to ac­com­pany the po­lice to the CID head­quar­ters, where he was well known, and he was driven by his driver, John Mwangi Nd­ina. But on ar­rival, both were de­tained — and Mr Nd­ina was re­leased at 8.30pm. By then, Mr Muri­ithi’s de­ten­tion or­ders had been signed.

But Muri­ithi was not a critic of Pres­i­dent Moi, per se, but a busi­ness ally and civil ser­vant — a stick­ler to rules.

Mr Kham­inwa de­cided to chal­lenge the de­ten­tion be­fore Jus­tice Ch­esoni, who made a rul­ing that would be used later to de­feat any ap­pli­ca­tion for a writ of Habeas Cor­pus. Mr Muri­ithi’s wife Jockbed Muthoni had asked the court to di­rect the Di­rec­tor of Crim­i­nal In­ves­ti­ga­tions De­part­ment to have the body of Mwangi Stephen Muri­ithi pro­duced be­fore the court and the said Di­rec­tor to ap­pear with the orig­i­nal war­rant or or­der for the de­ten­tion to show cause why Mr Muri­ithi should not be re­leased. It was Deputy Pub­lic Pros­e­cu­tor Mr Sharad Rao, as­sisted by Prin­ci­pal State Coun­sel, Mr Bernard Chunga, later Chief Jus­tice, who in­formed the court that Mr Muri­ithi was de­tained un­der the Preser­va­tion of Pub­lic Se­cu­rity Act — which had been used by both the colo­nial and Keny­atta govern­ments to si­lence crit­ics.

Jus­tice Ch­esoni ruled that although the rules gov­ern­ing habeas cor­pus are found in the Crim­i­nal Pro­ce­dure Code, “a habeas cor­pus ap­pli­ca­tion is in re­al­ity a civic mat­ter. What gives it the crim­i­nal touch is that by and large where the sub­ject is in pub­lic cus­tody the re­straint of his lib­erty re­sem­bles crim­i­nal de­ten­tion.”

Muri­ithi has been ar­gu­ing in courts — with lit­tle suc­cess — that his de­ten­tion in 1982 was or­ches­trated by Moi, who was his busi­ness part­ner, for the sole pur­pose of dis­pos­sess­ing him of his pro­pri­etary rights in some three lim­ited li­a­bil­ity com­pa­nies, namely Four­ways In­vest­ments Ltd, Sher­a­ton Hold­ings Ltd and Mokamu Ltd, in which the two were share­hold­ers.

In April 2011, Jus­tice Jean Gacheche awarded Mr Muri­ithi Sh80 mil­lion be­ing “his share of the pro­ceeds” from the sale of the prop­er­ties of the three lim­ited li­a­bil­ity com­pa­nies and Sh50 mil­lion as puni­tive dam­ages. But on May 90, 2014 the Court of Ap­peal set aside the judg­ment of the High Court and ar­gued that the de­ci­sion of Jus­tice Ch­esoni “con­clu­sively de­ter­mined the le­gal­ity” of Mr Muri­ithi’s de­ten­tion un­der the law as it then ex­isted.

It also ar­gued that Muri­ithi had failed to ta­ble ev­i­dence on the own­er­ship and sale of the prop­er­ties. “Sub­mis­sions can­not take the place of ev­i­dence. (Mr Muri­ithi) had failed to prove his claim by ev­i­dence. What ap­peared in sub­mis­sions could not come to his aid. Such a course only mil­i­tates against the law and we are un­able to coun­te­nance it,” ruled the Court of Ap­peal. It was the sad end to Muri­ithi’s bid for jus­tice; a fall from grace to grass. At times, “the law is an ass” as Charles Dick­ens once wrote.

Stephen Mwangi Muri­ithi

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