Embattled Football Kenya Federation (FKF) President Nick Mwendwa got a major reprieve after the court quashed a Ksh38 million fraud case against him on Wednesday, March 29.
In a ruling delivered by Kiambu Senior Principal Magistrate Wilson Rading, the court invalidated the decision by the Directorate of Public Prosecutions (DPP) to recommend the prosecution of Mwendwa with criminal charges.
While terminating the case against Mwendwa, the magistrate ruled the charges as framed by the prosecution were illegal, unlawful and unconstitutional.
"After considering the evidence presented by Mwendwa's defence lawyers, l find that they made a case to warrant this court's intervention to protect the abuse of the court process," Rading ruled.
Rading said the charges filed against Mwendwa by the DPP resulted from a probe by a committee appointed by former Sports Cabinet Secretary Amina Mohammed which were inconclusive.
"This court hereby issues orders to the effect that the charge sheet dated July 7, 2022, and or any other charge sheet prepared and registered in this court by the DPP and or his prosecutors against the accused person (Mwendwa) after July 6, 2022, be and hereby struck out for being defective unlawful, unconstitutional and for being an abuse of the court process and criminal justice system," Rading ordered.
The magistrate freed Mwendwa and ordered that the state should not apprehend and charge him based on the same findings of the probe team.
"The court orders that no other charges and/or any other criminal process premised upon the preliminary report of Football Kenya Federation (FKF) Inspection Committee dated November 5, 2021, including the summoning of the accused person to take a plea on any charge, shall be registered in it," ruled the magistrate.
The fresh charges being preferred against Mwendwa stem from the Report of Football Kenya Federation Inspection Committee dated November 5, 2021.
The decision by the court comes after Mwendwa's lawyers Eric Mutua, Charles Njenga and Victor Omwebu asked the court to terminate the criminal case as it was an affront to Mwendwa's fundamental and constitutional rights.
Mwendwa had opposed the fresh trial saying his rights have been infringed given that the DPP had told anti-graft chief magistrate Esther Nyuttu he had no evidence to tender in court.
Nyuttu discharged Mwendwa on July 6, 2022, under Section 87 (a) of the Criminal Procedure Code (CPC) after the DPP failed to avail witnesses in court in the case.
While seeking to be freed, Mwenda informed the magistrate that the facts and history of the case clearly demonstrated that there have been grave violations of the criminal justice system from November 12, 2021, including the investigations, arrests, incarcerations and blatant abuse of the court process.
"That it cannot be denied that there is an element of bad faith on the part of the prosecution in preferring the impugned charges against the accused person," Lawyer Mutua told Rading.
The DPP had opposed the application by Mwendwa on grounds that the charges were properly filed in court and that the court lacked the jurisdiction to hear and determine the request by Mwendwa.
In the case, Mwendwa was accused of defrauding Football Kenya Federation (FKF) Ksh29,502,709 between April 16 and May 31, 2021, at an unknown place within the republic of Kenya.
He is further accused that on May 15, 2021, at an unknown place within the republic of Kenya jointly with others not before the court he fraudulently acquired public property to wit Ksh2.5 million the property of it of Football Kenya Federation (FKF).
Mwendwa was further accused of fraudulent acquisition of property amounting to Ksh5 million and another Ksh1 million on March 4 and May 6, 2021, respectively.
