BY SAM ALFAN.
Former Nairobi Governor Dr Evans Kidero has suffered a blow after the Court of Appeal rejected his bid to terminate criminal charges pending before a magistrate’s court.
A bench of three judges comprising of Justices Hannah Okwengu, Fred Ochieng and John Mativo dismissed the appeal stating the Kidero failed to not satisfy them as to why the trial or the civil case, seeking the recovery of Sh14 million, should be stopped.
“The upshot is that we find and hold that the applicant has not satisfied the twin principles for consideration in an application under Rule 5(2) (b) nor is it in public interest to stay the proceedings. Accordingly, we dismiss the application dated 20th December, 2021,” ruled the appellate judges.
The judges said they found nothing to suggest that if the civil suit is determined, the petition or the criminal trial will be rendered nugatory.
The court further said that there was no suggestion that Kidero’s rights to a fair trial either in the criminal trial or the civil suit will be compromised.
“To us this would have been a formidable arguable ground. There is no suggestion that requiring him to plead a defence in the civil action would have the effect of undermining his privilege against self-incrimination or prejudice his presumption of innocence in the criminal trial or his prosecution of the petition,” said the three judges.
Kidero moved to the High Court challenging his arrest, detention, prosecution and the warrants authorizing investigations into his bank accounts.
He sought a raft of reliefs among them a prayer that the criminal proceedings be quashed.
The said petition was subsequently transferred to the High Court Anti-Corruption and Economic Crimes Division.
And as the case was pending, Ethics and Anti-Corruption Commission moved to court seeking to recover Sh58 million, allegedly paid to former city hall of officials.
Kidero is alleged to have received Sh14.4 million, which EACC was to trace and recover on behalf of City Hall.
Aggrieved with the move by EACC, he sought the cases to be suspended pending the outcome.
He argued that if civil suit is allowed to proceed concurrently with the other cases there is a real likelihood of the three courts entering different decisions over the same subject matter regarding his culpability.
He further said to allow the matters to proceed concurrently is an abuse of the court processes by the 1st respondent.
Kidero was of the view that it is wrong to concurrently prosecute both civil and criminal matters over the same subject, because the money could be recovered from him after conclusion of the criminal trial and if he is found guilty under Section 54 of the ACECA.
He further stated that he is going to be subjected to a recovery process over the same subject matter that can be recovered at the end of the criminal proceedings. He states that he has an arguable appeal with high chances of success as demonstrated by the grounds listed in the draft memorandum of appeal.
EACC argued that Kidero must satisfy the court that he has an arguable appeal, that if the orders sought are not granted, the appeal if successful will be rendered nugatory and that a third principle whether it is in public interest that the order of stay be granted.
The agency told the court that in dismissing the application, the High Court found that the law permits concurrent criminal and civil proceedings, so no prejudice can arise against the applicant in the circumstances.
Kidero is jointly charged together with others, with conspiracy to commit corruption contrary to section 47A (3) as read with section 48 of the Anti-Corruption and Economic Crimes Act (ACECA) over alleged loss of Sh58 million.
They were also charged with unlawful acquisition of public property contrary to section 45(1) (a) as read with section 48 of the Anti-Corruption and Economic Crimes Act. It was alleged that the appellant unlawfully acquired Sh. 14,400,000.
