Report to Prison: Court Upholds Kerich Jail Term

Suspended Nairobi County Finance Executive Charles Kerich was yesterday ordered to immediately surrender to prison after the High Court declined to suspend his three-month jail term for contempt of court over unpaid Sh106.7 million in legal fees.

In a stern ruling underscoring the authority of the courts, Justice Francis Gikonyo of the Milimani High Court directed Kerich to report to Industrial Area Remand Prison without delay to begin serving the sentence imposed in May for repeatedly defying court orders requiring Nairobi County to pay Kwengu & Company Advocates Sh106,736,841.83 in legal fees.

Justice Gikonyo declined to interfere with the sentence he imposed, insisting that compliance with court orders could not be suspended merely because fresh applications had been filed.

"I am not going to suspend my order to jail him. If he can present himself to court, let him present himself to the relevant authority," the judge ruled.

He further directed police to enforce the warrant of arrest should Kerich fail to surrender voluntarily.

"The sentence is still in force. The police should be able to arrest him immediately. Let them do their work. If he continues like that, then this court will treat him as a fugitive," Justice Gikonyo said.

The ruling marks another dramatic chapter in the months-long legal battle between the suspended finance chief and Kwengu & Company Advocates over the unpaid legal fees.

Although Kerich appeared virtually for the first time since he was sentenced on May 19, he never addressed the judge.

His newly appointed lawyer, Duncan Okatch, spoke on his behalf.

The court was also not informed whether Kerich had physically returned to Kenya, leaving uncertainty over his whereabouts even as the judge ordered him to report to prison immediately.

Central to Kerich's plea was an explanation for his failure to attend court on May 19, when the sentence was imposed.

Okatch said the absence was not deliberate but resulted from an official trip.

The court heard that, according to an affidavit filed by Kerich, the Office of the Deputy President Kithure Kindiki issued him with travel clearance on May 12, a week before the sentencing, permitting him to travel to the United States for official training.

Okatch said this was disclosed in an application dated June 11 and reiterated in Kerich's affidavit.

"We have demonstrated the reasons why, unfortunately, he was not in court when the matter came up on May 19. The travel had been cleared by the Government of Kenya. We have availed that evidence," Okatch submitted.

He argued that Kerich had not absconded, noting that he had now appeared before the court virtually and remained available to comply with future directions.

The lawyer urged the court to grant temporary relief pending the hearing of four applications filed by Kerich's new legal team seeking to suspend the committal order.

"My Lord, Kerich is a law-abiding person. He comes before you this morning with honesty and humility. All we are asking is that you give him the benefit of the doubt until the applications before you are heard," Okatch said.

"If, after hearing us, the court finds that the sentence should still run, then it will run. All we are asking is that you allow us to persuade the court. If we fail, your pen is still there."

Okatch also told the court that Kerich ceased being the substantive County Executive Committee Member for Finance on June 5 and that another official had already assumed the office.

Lawyer Gordon Ogado, appearing for Kwengu & Company Advocates, fiercely opposed the request, arguing that a contemnor could not continue disobeying court orders while seeking the court's discretion.

He said Kerich had remained in defiance of the court for nearly two months since the sentence was imposed and had never surrendered despite the outstanding warrant of arrest.

"A good citizen and one who loves the Constitution of this Republic should have at least submitted himself to comply with the orders of the court. He cannot be the one who tramples on the same Constitution that ordered him to be incarcerated and also seeks the protection of the same Constitution," Ogado argued.

He maintained that if Kerich was dissatisfied with the decision, the proper remedy was an appeal before the Court of Appeal rather than asking the same court to suspend its own sentence.

"If they are aggrieved by the decision of the court, they should be appealing against the decision. It is only the appellate court that may grant the stay they seek," he submitted.

Ogado warned that granting the request would undermine the authority of the Judiciary.

"The reputation of the court is at stake. It cannot make orders which can be disobeyed with impunity and then be asked to reopen its own decision," he said.

Justice Gikonyo, however, told Okatch's law firm that it first had to regularise its appearance before the court before he could consider the substantive applications.

"First things first. You have not even come on record. Your applications have not been validated yet. That is where we should start before I consider all these other arguments," the judge said.

Consequently, he declined to stay the sentence and reiterated that Kerich must immediately present himself to the relevant prison authorities. He warned that if Kerich failed to do so, law enforcement officers should arrest him without delay.

Kerich's latest bid comes days after he filed another application claiming he had developed serious health complications while in the United States and required continued specialist treatment.

However, Kwengu & Company Advocates disputed the claim, arguing that Kerich's own medical records showed only a single emergency room visit at NewYork-Presbyterian Queens Hospital on June 16 for a headache, after which he was treated with Tylenol and discharged.

Kwengu has also argued that Kerich's affidavit was sworn before a New York notary on June 23 while its exhibits carry a Nairobi commissioner's endorsement dated June 24, an irregularity that he says renders the document of doubtful authenticity.

Kerich has now filed four separate applications since his May 19 conviction, each advancing new grounds without surrendering to prison or settling any part of the Sh106.7 million decree.

The matter will be mentioned on July 29 for directions on the pending applications, but the committal order remains in force, requiring Kerich to surrender immediately or risk arrest.

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