A Nairobi court has dismissed an application by NYS scam suspect Anthony Kihara seeking to stop his prosecution over the loss of Sh791Million.
Kihara with others will face money laundering charges.
Justice Joseph Onguto while delivering a ruling in the application filed by Kihara said there was no evidence put forward to demonstrate that the decision to prosecute him was irrational, unreasonable and malicious.
He said a similar application has been made in many occasions but the court declined to grant orders. “If I grant the orders sought, the judgement pending before this court over the same issue of DNA results will be prejudiced”, said judge Onguto.
Kihara’s lawyer, Ham Langat said that he filed the application in good faith and is asking the court to halt a plea his client is slated to take on May 4.
The prosecution opposed the application by Langat claiming that it lacks merit and should be dismissed.
Judge Onguto said Kihara failed to prove how he will suffer prejudice if the orders sought are not granted.
“Granting such orders will be a complete abuse of the court process since there is no prejudice that Kihara will suffer if denied the orders,” said Onguto.
He added that since there is another petition pending before the same court and waiting determination, granting such orders will prejudice that judgement.
The DPP argued that the issues raised in the petition are weighty constitutional matters which should proceed without any further delay.
Justice Onguto said the application is misconceived and incompetent and improperly filed before court and an open abuse of the court process.
He added that matters raised by the accused in the pleadings formed the basis of his defense and should be raised before the trial court.
“The high court has no jurisdiction to determine whether or not the applicant is guilty or not and also whether criminal offense was committed in relation to the matters the subject of the pleadings, ”said Onguto.
The prosecution said the decision to prosecute him was based on the sufficiency of evidence gathered against him.
Judge Onguto also said the circumstances under which previous applications for conservatory orders were declined have not changed.
Kihara wanted a DNA examination conducted so as to establish whether he is related to another NYS key suspect Ben Gethi, an application that was dismissed. The suspects are expected to take a plea on May 4.