BY SAM ALFAN.
The High Court has freed a Briton and a Kenyan charged with trafficking narcotic drugs valued at over Sh 598.3 million.
Justice Luka Kimaru set aside a decision by Kibera trial magistrate declining to withdraw the matter against the two accused persons.
“That the decision is accordingly set aside and substituted by a decision of this court allowing Director of Public Prosecutions to discontinue the criminal proceedings against Jack Alexander Wolf Marrian and Roy Francis Mwanthi,” ruled Kimaru.
He further added that pursuant to Article 157 (7) of the constitution the prosecution had closed its case.
“Respondent are hereby acquitted of the charges that was brought against them. It is so ordered,” ruled the judge.
Kimaru said the High Court invoked its jurisdiction under Article 165(7) of the constitution and section 362 and 364 of criminal procedure code and called the decision of the trial court made on the January 31, 2019 for the purpose of revising the same.
The two accused persons were accused that on July 29,2016 , at Kilindini port in Mombasa county jointly with others not before court trafficked by conveying a narcotic drug namely cocaine to wit 99,721.8/grammes valued at Sh 598,330,800 concealed in a container.
When they were first arraigned in court the accused pleaded not guilty to the charge.
Prosecution thereafter adduced its evidence and later the trial court ruled that it had established a case to entitle the court place the accused person on their defense.
On the day scheduled for defence hearing , prosecution made an application to withdrawal the case on grounds that they had received new evidence to show the two had no knowledge of the drugs in the shipment.
Prosecution told the court that it had received information which pointed to the fact that the two may have been victims of circumstances of an international criminal drug trafficking network.
“Prosecution explained that from the information received, it became clear that it would be unfair, oppressive and contrary to the principles and tenets enshrined in the constitution, the office of DPP and the National Prosecution policy to continues with the prosecution, hence, the decision by the prosecution to seek the the trial court’s permission to terminate the proceedings,” stated court documents.
The accused did not oppose prosecution application but the trial court declined the same and ordered the case to proceed with the defence hearing.
While disallowing the state application the trial magistrate said the court had place the two accused on their defense and to their. credit , the accused persons told the court they were ready to proceed and they should be allowed to proceed and defend themselves.
The court further said the timing of the application is suspicious and the reasons advanced by the DPP did not persuade the court to exercise it discretion to have the proceedings terminated.
“I find the same to be an abuse of the court process and does not serve interesr of administration of justice. In the upshot , the application by the DPP is hereby declined,” rule magistrate Derrick Kutto.
The court decision aggrieved both prosecution and the accused persons and they filed separate applications seeking to have the decision revised.
DPP said in seeking to terminate the criminal proceedings were in the public interest and are not in abuse of legal process.
They said that the two accused were caught up in a web of international drug trafficking network.
“The DPP formed the opinion that it would not be in public interest to continue with the prosecution,” said Ondari.
