BY SAM ALFAN.
Director of Public Prosecution Noordin Haji has appealed against a decision by a Nairobi court to acquit tycoon Humphrey Kariuki.
In the appeal, Haji wants the High Court to quash or set aside the decision of senior principal magistrate Kennedy Cheruiyot last week faulting the court for acquitting the five instead of granting an adjournment as pleaded.
Others who were acquitted were Peter Njenga, Robert Thinji, Eric Mulwa, Kepha Gakure, and the two companies- African Spirits limited and Wow Beverages limited.
The DPP said the move to acquit the accused persons was actuated by other considerations other than the interests of justice and the magistrate demonstrated outright bias against the prosecution.
He says the magistrate considered irrelevant or extraneous matters thus arriving at unjust decision in law. Further the DPP said the court failed discharge his judicial duties of maintaining an accurate and proper record of the proceedings before him, thus the entire proceedings are a nullity.
According to the prosecution, the Magistrate was wrong in entertaining arguments that persons charged under different statutes though arising from the same transaction cannot have their cases consolidated yet the provisions of section 134, 135, 136 and 137 of the Criminal Procedure Code CAP 75 do permit such a consolidation.
He argue the court erred by failing to invoke the provisions of section 76 of the CPC by referring the matter to the High Court if he was not certain about which court between both Chief Magistrates Francis Andayi and Martha Mutuku would have the necessary jurisdiction to consider the question of consolidation and the number of counts resulting from consolidation.
He claims that the trial court erred in law by considering matters that were neither pleaded nor urged before him thus his decision was without any factual or legal basis and in his assessment of what amounts to the public interest considerations in a criminal trial by setting a standard unknown in law at page 6 of the ruling.
“The magistrate exceeded the jurisdiction conferred upon him under section 8 of the magistrates Courts Act by purporting to intervene and control the Director of Public Prosecutions in the exercise of his constitutional powered allegedly on the grounds of abuse of process without the benefit of any evidence to that effect,” adds Prosecution.
The Court heard that the acquittal of the accused persons was not founded on any law or fact and erred in law and fact by making a finding that to adjourn the matter indefinitely or pending consolidation would most likely be in vain and that an amendment to the charge would be unnecessary and inconsequential.
He said by reasoning that way, the court descended into the arena of litigation and making unsubstantiated, unjustified and erroneous finding thus occasioning a miscarriage of justice.
He accused the magistrate of failing to apply the strict provisions of 205 of the Criminal Procedure Code CAP 75 since the prosecution sought an adjournment for a period of not more than 15 days half the time of the period prescribed by the legislature under this section.
