BY SAM ALFAN.
A firm director charged alongside former PS Lilian Omollo and 30 others over the loss of Sh468 million at NYS has lost a bid to quash his prosecution.
This is after High court judge John Onyiego dismissed an application by Peter Wagura Kimari’s to have him face trial over the loss of the public monies.
In his ruling Onyiego said that Wagura did not prove that he will suffer any violation of his fundamental rights as he will be given the right to be heard by the trial court hence no prejudice will be suffered.
The judge however upheld the decision by Director of Public Prosecutions Noordin Haji to charge Wagura who is a co-director of Arkroad Holdings limited together with Antony Makara Wamiti.
“It is my finding that Wagura was properly changed and that his prosecution process should continue as scheduled and the case to be determined on merit,”ruled justice Onyiego.
The judge also said in his 24 page ruling that a prohibition is never appropriate where the a decision to charge has already been approved.
“The grounds cited and reasons advanced for grant of orders is not merited hence the prayer is disallowed,” ruled justice Onyiego.
He further noted the accused was trying to invite the court into determining the merits and demerits of the case allegedly based on the evidence which is not for the high court anti-corruption to determine.
“The applicant will have his day in court to ventilate his case and actually discharge his burden of proof which is shifted to him under section 23 of the penal code that he was involved in the commission of the offence or that he tried reasonably to stop the commission,” said the judge.
Wagura through his lawyer Julius Magos Ogamba had filed application before High Court Anti-Corruption court seeking orders to quash decision by DPP and DCI to charge him with economic crimes arising out of activities allegedly undertaken by Arkroad Holding Limited where he his co-director with Anthony Makara Wamiti.
Kimari argued that the ongoing criminal trial arose out of activities and transaction undertaken by the said company which he was passive director which was corroborated under oath by Anthony Makara Kimari his co-director and co-accused.
His lawyer argued the law protects his client against any criminal culpability for actions of the company to which he was not an active participant.
He also said that the trial court will and is likely to prejudice his constitutional rights leave alone expenditure of unnecessary costs in defending the charges .
He further stated that he has continued to suffer untold amounts of stigma as a results of the said prosecution which culminated to his interdiction from his place of work, loss of income and negative publicity.
In his court documents, he expressed concerns that the recommendations and determination by the Director of Public Prosecution and Director of Criminal Investigation to have him charged for nonexistent criminal liability was an illegal and bereft of merit hence unlawful and amounts to extreme violation of the principal of the rule of law and justice if unchecked by the court.
He claimed he had no control over the management of Arkroad Holdings Limited save for playing a facilitative roles and at the time of opening the company account , his co-director was designed the role of acting as sole signatory to the bank account.
While challenging the application, DCI Kinoti through investigating officer Joseph Mugambi informed the court the decision to charge the accused was based on sufficient documentary evidence gathered by DCI detectives who recommended to the Director of Public Prosecution to approve and prefer charges against Arkroad Company Limited and its directors among them Kimari for alleged illegal of public funds.
DCI and DPP adduced the company’s board resolution in which bank account was opened by Kimari and his co-director Anthony Wamiti . They also produced the company’s incorporation certificate and also bank accounts opening documents showing that Kimari was one of the directors and also a signatory to the company account.
DPP said he was not acting on anyone directions while preferring the charges against the accused and the matter raised were matters of evidence which can be ventilated before the trial court and nothing unconstitutional ,illegal, irrelevant ,unreasonable or in contravention of the principles of national justice or fair administrative actions as alleged by Kimari.
Court heard that DCI Kinoti started investigations in regard to loss of public funds at National Youth Service in which funds were lost through fraud perpetrated by public officers in collusion with business entities among them Arkroad Holdings Limited who directorship encompasses Kimari and Anthony Wamiti.
DPP and DCI urged the court to dismiss the application since the court was called to usurp the role of the police or the DPP.
