A prominent Nairobi lawyer is under criminal investigations for allegedly stealing a document from the High Court Family Division’s registry.
Despite not having been a party to a succession cause filed by the widower, Navin Kerai, lawyer Jotham Arwa has been accused of unprocedurally collecting letters of administration for the estate of Sapna Kanji Patel.
The letters had been granted to Ms Sapna’s husband Navin Kerai.
Arwa is the managing partner at Rachier & Amollo Advocates and was among the 90 candidates who had applied to be conferred the rank of senior counsel. He, however, was unsuccessful in the application.
The case also raises questions about the integrity of the Family Division’s registry staff who handed over the original letters to a non-party.
The Directorate of Criminal Investigations (DCI) has been on the case since January 2019 after being directed by the Director of Public Prosecutions Noordin Haji.
“This is a serious complaint and there is a need to get to the bottom of the matter. Do, therefore, carry out thorough investigations into the allegations and forward the investigations file to the Director of Public Prosecutions for perusal and directions,” the DPP’s letter of January 31, 2019 stated.
The DPP’s directive to the DCI to investigate the matter followed a complaint by the widower, Kerai who is locked in a child custody and property tussle with his father-in-law, Kanji Knuverji Patel.
Arwa is representing Kerai’s father-in-law in the two matters still pending in court.
Besides the investigations ordered by the DPP and which has been dragging on since January, the Deputy Registrar, Family Division, Pauline Mbulika has also written to Arwa to “return the original grant for letters of administration that you unprocedurally collected from the court to us.”
“As an officer of the court, you ought to have known that court records, despite being public documents, cannot just be open to all and sundry and in any case, access does not accord one right to take whatever they want from such records unregulated or without any formal request,” Mbulika stated in the letter dated May 2, 2019 to Arwa.
In any case, Mbulika states, interested parties are only entitled to certified copies of such letters and not the originals which Arwa, through his clerk Alice Wangari took.
In a letter to the Deputy Registrar on January 11, Arwa had admitted to having collected the original letters of administration and used the same in an appeal to stop a ruling by the Environment & Land Court which had allowed Premji to continue collecting rent from the disputed properties. The appeal had been filed by one Harji Ramji Raghwan reportedly on behalf of Premji’s estranged father-in-law.
“I was taken aback to see these letters for I had not seen them before despite the fact that I had applied for them some time back,” said Premji in his many letters of complaint.
It is after the filing by Arwa in the appeal that Premji’s lawyers, Onyony & Co. Advocates to obtain the letters of administration but found that original letters had been collected by a Ms Wangari on instructions from Arwa.
In a protest letter to the Deputy Registrar, Kerai’s lawyers say the “illegal and unlawful obtaining of the original letters of administration by Jotham Okome Arwa and Alice Wangari … is in bad faith and not for good cause and can only be for criminal and /or underhand and unlawful intentions.”
According to Kerai’s lawyers, Arwa’s con game is threatening to deny the widower his rights to manage the estate of his deceased wife.
“The respondents’ (Arwa and Ms Wangari) action is appalling, offensive and felonious and is meant to deprive the petitioners the right to own, hold and possess the original letters of grant which right is granted by law and the constitution of Kenya,” they said.
Though Arwa has admitted to having taken the letters and had initially undertaken to return it, he now says he has misplaced the same.
In the application that he had made in court to pre-empt his arrest over the loss of the letters of administration from the registry, Arwa says that though he has been “ready and willing” to return the said letters, he has been “unable to trace the same because it had been misfiled and/or misplaced.”
He, therefore, wants the court to issue additional copies of the letters of administration. However, he has not followed through on this application and his assertion that the judiciary is preparing additional copies remains doubtful.
When approached for comment, Arwa denied that the documents in question were stolen and claims that the claims were investigated and dismissed for lack of merit. “For your information, section 79 of the Evidence Act expressly declares all records of judicial bodies as ‘public documents’, while Section 80 thereof gives any person a right to request for any public document, and also imposes a duty on every public officer having custody of a public document to release it to whomever requests for it. Consequently, when a person requests for a copy of what forms part of a court record, and is given the same, nothing can be said to have been stolen,” Arwa told the Nairobi Law Monthly.
“I just wish to inform you that there is an attempt to use your media house as an instrument of blackmail the same way an attempt was unsuccessfully made to use the office of the DPP and DCI for the same purpose,” he added.
NLM has not seen any evidence that shows that the investigations had been concluded or that the DCI had dismissed the same as claimed by Arwa.
What our investigation found however is that the DCI has been dragging its feet in concluding the investigation. No file has been forwarded by DCI to the DPP that would from the basis for us to conclude that the allegations were dismissed for lack of merit. (