Sunday, July 21, 2013

Teacher disowns consent in Saitoti son case

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PHOTO | FILE Mr Sebastian Maina and his wife Elizabeth during an interview at their Subukia farm on November 13, 2012.
PHOTO | FILE Mr Sebastian Maina and his wife Elizabeth during an interview at their Subukia farm on November 13, 2012.  NATION MEDIA GROUP
By WANJIRU MACHARIA lwmacharia@ke.nationmedia.com
Posted  Saturday, July 20  2013 at  23:30
Zachary Musengi Saitoti is my son and I will never give up my fight to have him back.
That’s the message from Nakuru teacher Sebastian Maina Ngunju, who disowned a consent agreement drawn up by lawyers last week claiming that he had withdrawn his claim to be recognised as the biological father of Mr Musengi. (READ: Subukia family in two-decade search for lost son)
Mr Ngunju said he was shocked to read in the press that he and his wife had dropped their suit against the late minister George Saitoti’s widow, Margaret, and agreed to never to lay claim to Musengi before the High Court in Nairobi last week.
Mr Ngunju said he did not sign that court consent requiring him to never file any case claiming the parentage of Musengi who, he adds, was born Stephen Wachira. (READ: These are fraudsters out to extort money, says Zachary)
Speaking to the Sunday Nation, the 55-year-old teacher said he did not authorise his lawyer, Mr Harry Gakinya, to sign such a document.
“I have not seen the document and I am waiting for my lawyer to tell me what transpired,” said Mr Ngunju.
He said his lawyer did not consult him before making the decision, adding that Mr Gakinya’s role was to take instructions from him and not to decide for him.
Mr Ngunju and his wife, Mrs Elizabeth Njeri Maina, say Musengi is their son who was born on September 21, 1985 and the third born in a family of five.
He insisted that Mr Musengi was stolen while still a toddler and he vowed he was ready to do everything to prove that he was the youth’s biological father.
“The last I was informed about the case (I lodged in Nakuru) was that an investigation was launched. I was questioned at the Rift Valley Provincial Criminal Investigations Department headquarters and gave my side of the story. How a consent was arrived at and the matter withdrawn is something I do not understand,” he said.
Mr Ngunju said a DNA test, which is the ultimate test for parentage, was never conducted and that he was ready for the same.
In a consent entered and signed at the Milimani Law Courts on Thursday last week, Mr Ngunju and his wife allegedly agreed never to file any suit claiming Musengi as their son.
An order of prohibition permanently barring the couple or their family members from contacting Mr Musengi or Mrs Margaret Saitoti directly or indirectly in respect of the allegations that they are Musengi’s parents was part of the consent.
The couple allegedly agreed to withdraw a case they filed in a Nakuru court seeking to institute a private prosecution against Mrs Saitoti over allegations that she had stolen their son. (READ: Couple loses fight over Saitoti son)
In the consent, the Ngunjus also allegedly agreed not to file any other criminal case against Mrs Saitoti in any other subordinate court.
Mr Ngunju filed the application to be allowed to privately prosecute Mrs Saitoti on November 7, last year.
According to the charge sheet, Mrs Saitoti, on or about August 31, 1988, unlawfully concealed and kept Zachary Musengi Saitoti knowing that he had been abducted from his parent’s home in Subukia district.
Mr Ngunju wants to prosecute Mrs Saitoti under section 261 of the Penal Code which prohibits wrongfully concealing or confining a kidnapped or abducted person.
Mr Ngunju was a bitter and frustrated man when he spoke to the Sunday Nation, saying there was a plan to end the case against his wishes and deny him justice.
Efforts to get Mr Ngunju’s lawyer, Mr Gakinya, to comment on the unfolding drama proved futile as he said he needed more time before meeting the reporter.
The lawyer flatly refused to talk about the consent entered between the two families. However, he described the matter as “delicate”.
Asked to comment on the matter, the Director of Public Prosecutions (DPP), Mr Keriako Tobiko, said that for a consent to be entered, there must be proper engagement between the parties.
Mr Keriako, however, said he was not in the picture regarding the latest developments in the Musengi case.
“We were represented in the case by a counsel just like the other parties were. But at the moment I do not have details regarding the latest occurrences in this matter because the files are being handled by my juniors,” Mr Keriako said.
Although in an out-of-court settlement all that is required for the judge to adopt it are signatures by lawyers representing the parties in the matter, Mr Gakinya neither confirmed nor denied that he had signed the consent.
The consent document seen in court was signed by Mr Gakinya, the State counsel representing the Director of Public Prosecutions Keriako Tobiko and Saitoti’s family lawyer, Mr Fred Ngatia.
Legal experts say Mr Ngunju now has the option of filing an application in court for the consent to be vacated.
When Mr Ngunju first filed the case at the Nakuru law courts, the Saitoti family filed a case seeking to stop the proceedings.
This was the second case the Ngunjus have filed seeking justice for their lost son after the first one which was filed before a Nairobi court soon after Musengi’s disappearance.
A woman connected with Musengi’s theft was arrested and charged after much lobbying at the Criminal Investigations Department headquarters in Nairobi but she was later acquitted.
According to the Ngunjus, the woman later moved to Kiambu and that all the main witnesses in the initial case died mysteriously.
“I think police officers handling the case were paid to mislead us and make us believe that our son was far away, beyond Kenyan borders. My husband was led on a wild goose chase with CID officers saying that the boy had been spotted in so many places,” says Elizabeth Maina.
She said the family could not lodge an appeal in the case after an investigating officer told them that they were risking their lives by pursuing the matter.
“The officer hinted to us that our son was happily living with a VIP family and, if we continued following the matter, we would be killed and we believed that because some of the witnesses and investigating officers had died mysteriously,” she said.
“One of them told my husband not to appeal the case and wait for our son to be found in a Godly way and assured him that our child was not in any problem.”
Mr Ngunju said he did not understand at what point the consent was arrived at because the last time he was in court was when a police report on the investigation on Musengi’s true parentage was filed.
“I told my lawyer that I would challenge the report after I discovered that the child’s photo, on which the police based their investigations, was not that of Musengi but of Mrs Saitoti’s sister-in-law’s son,” he added.
Mr Ngunju said he swore an affidavit to that effect and signed it but was not sure if his lawyer presented it before Justice Isaac Lenaola who was handling the matter.
On Thursday, he said he was in Nairobi following up on the matter and that he had received many calls from relatives.

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