BY SAM ALFAN.
Director of Public Prosecution Noordin Haji has appealed high court decision that blocked prosecution of Safaricom Director in charge of Special Project Sylvia Mulinge after she allegedly killed an eight year old child on southern bypass in a road accident.
He wants the judgement of the high court dated 11/5/2017 prohibiting DPP from prosecuting Sylvia Mulinge over traffic offence set aside.
He argues that judge George Odunga erred in law and facts in interfering and interrogating the decision of the Director of Public Prosecutions without proof that he had acted in contravention of the law.
He accused the judge for failing to warn himself that the judicial review court ought not to interrogate the merit of the decision but the decision making process and that it is not the duty of the judicial review court to consider and access merit or demerit of the intended charge as that is the function of the trial court to determine the varacity and merit of any evidence by the prosecution.
“Therefore analysis of evidence should be done by trial courtand not high court judicial review application” said DPP.
Through senior assistant director of prosecution Ashitiva Ashimoshi say’s the judge erred in failing to hold that’s as prosecution which is charges with the responsibility to make decision to charge and should not quash or prohibit the prosecution.
“The judge erred in quashing the decision to prosecute and prohibiting prosecution without a finding that the same was cobtrary to the law,without jurisdiction or consequence of any error of the law”. Ashimoshi said.
He further said Slyvia Mulinge case had never been closed at any given but she had attempted to conceal a crime from DPP a fact which was revealed by a complaint by Calorine Nasike Wanjala to the DPP culminating to the DPP calling for the file and making the decision to charge the respondent.
” Judge erred in finding that the applicant was orally informed by a police officer that initial investigations , she was not on the wrong in relation to the accident and that the prosecution had not contraverted the same which is contrary to the evidence in the file in form of recommendation and finding of the police in the letter dated 21/9/2017 finding the applicant was on the wrong and recommending the applicant be chargex with the offence of causing death contrary to section 46 of the traffic Act”, said Ashimoshi for DPP..
Justice George Odunga in his judgment prohibited Director of Public Prosecution from prosecuting her for the offence of causing the death of a minor by dangerous driving. Pastor James Ngang’a of Neno evangelism center was charged with the similar offence.
In a judgement read on his behalf by Justice John Mativo, Judge Odunga further ordered that Mulinge should not be charged at the Kibera law courts unless the police and DPP have satisfactory evidence that the circumstances have changed to warrant a review of the initial decision not to charge her.
Sylvia moved to court last year October seeking to stop her arrest and prosecution before the Kibera Court.
“An order prohibiting DPP and IG from arresting , arraigning , processing the Applicant in relation to Traffic Case No. 6843 of 2017” said Sylivia.
She also sought to block hearing and determination of the Traffic case No. 6843 of 2017 intianted against her by the charge sheet dated 13, November, 2017.
“Orders be issued prohibiting DPP and IG from taking any steps which would results cumulatively or otherwise arrest and prosecution of the applicant pursuant to the road accident which occurred on 1 February, 2015 along the Southern By pass” Sylvia said in her court documents.
She further wanted High Court to quash directive on a letter dated 19 October, 2017 purporting to re-open for the trial of Sylvia Wairimu Njuguna on a road accident which occurred on 1 of February, 2016 in a total abrogation of Sylvia right to fair administrative action.
During the time of accident, the director was assigned to a Toyota Prado which caused the accident at 11:35 a.m along the Southern By Pass as she drove from Ngong Road direction toward’s Langata Road.
Sylvia reported the accident at Langata Police station on the same day and recorded a statement relating to the accident on 2 February, 2017.
The accident killed a 8 year old girl . The matter was investigated by the police.
Two years later Mugeria , Lempaa and Kariuki moved to court seeking orders to declare refusal of police under command of Inspector General of Police to investigate and take legal action against the the Safaricom Consumer Unit Director Sylvia Wairimu Njuguna as unconstitutional and against public policy.
He further sought declaration that decision by the Langata police station to to determine the closure of the case without informing or seeking directions from the Director of Public Prosecution is inimical and contrary to the criminal justice system.
The organization further want police compelled to investigate and institute proper proceedings against the Safaricom employee.
Director of Public Prosecution to appeal another shocking decision by the judiciary.
