BY SAM ALFAN.
Director of Public Prosecution Noordin Haji has appealed against the acquittal of former Nairobi Governor Mike Sonko who was freed last week in Sh20 million graft case.
Chief magistrate Douglas Ogoti released Sonko and other persons charged alongside him saying the charge sheet was defective.
But the DPP says Ogoti failed to deliver substantive justice and relied on technicalities in acquitting Sonko and his co-accused and relying on extraneous reasons as a basis of acquitting them.
“I pray that the Appeal be allowed; the order of Acquittal of the Respondents be quashed in its entirety and further, this Court to return a finding that the Appellant had made out a prima facie case requiring the Respondents to be placed on their defence with respect to all the counts in the charge sheet,” the DPP said in the appeal.
In the appeal filed before High Court, the chief Prosecutor claims that the trial Magistrate grossly misdirected himself by relying on an old charge sheet filed in court on January 27, 2020 in making a finding that the charges were defective.
He said the DPP disregarded the substituted charge sheet filed in court on September 7, 2020.
“Trial Magistrate erred in fact and law by misapplying the law by holding that there was a defective charge sheet whilst he had already admitted the amended Charge sheet filed in court on 7th September 2020 and did not reject the said charge sheet under section 89(5) of Criminal Procedure Code, Cap 75 Laws of Kenya,” says the DPP.
He accuses Magistrate Ogoti of failing to consider the provisions of section 214 of the Criminal Procedure Code, Cap 75 Laws of Kenya.
He further adds that the trial Magistrate erred in law and fact by failing to make a finding on each and every count as per the amended charge sheet.
According to the DPP, Ogoti failed to analyze the evidence adduced by the 19 prosecution witnesses thereby arriving at an erroneous finding.
Haji further days the trial magistrate erred both in law and fact by disregarding the evidence on record and failing make a finding whether or not the prosecution had established a prima facie case against the accused persons.
He accuses Ogoti for failing to consider the submission and authorities he made and placed a heavy premium on Sonko and his co-accused submissions leading to their acquittal.
Haji says the ruling delivered on December 21, 2022 did not comply with section 169 of the Criminal Procedure Code, Cap 75 Laws of Kenya and Magistrate erred in law and fact by grossly misdirecting himself in applying the provisions of section 210 of the Criminal Procedure Code, Cap 75 Laws of Kenya, so mechanically and against Public Interest in the ruling delivered on 21 st December, 2022.
Anti-corruption Chief Magistrate Douglas Ogoti (currently based in Embu) accquited Sonko, who was accused of corruptly receiving in Sh20 million for tenders awarded during his tenure as the Nairobi county boss.
The trial magistrate held that the charge brought against Sonko was defective.
“I do hence find that the charges as drawn are fatally defective in want of substance. The Prosecution failed to establish a prima-facie case against all accused and they are acquitted under section 210 criminal Procedure Code,” ruled Ogoti.
The court agreed with the defence lawyers John Khaminwa and Assa Nyakundi that the charges brought against Sonko and his co-accused could not cause conviction.
Magistrate Ogoti said framing of charges requires clarity in the charge sheet as stated in section 134 of criminal Procedure Code. However, looking at the excepts from the charges as cited above, there was no evidence supporting the fact the Governor of Nairobi city county was a private limited company and its director.
“There was no evidence that the Governor of Nairobi city county was a public body in relation to count 3 and 4 . Further in the same counts , there was no evidence to support the fact that the contract was a public body,” added Ogoti.
The magistrate further observed that there is manner in which charges are drawn to bring out the facts clearly and these are the facts that ought to be brought out in the evidence.
