It is a big win for the Directorate of Public Prosecutions (DPP) after the High Court overturned a lower court decision to acquit former Sports Cabinet Secretary Rashid Echesa in the Ksh39 billion fake arms case.
Echesa is accused of defrauding money from two foreigners through a multi-billion-dollar contract to supply military equipment at Harambee Annex, which housed the office of the former Deputy President, now President William Ruto.
In a decision rendered by High Court Judge Kanyi Kimondo, the trial court's finding that freed Echesa in December 2021 was set aside, and it was ordered that he be placed on the defence.
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Judge Kimondo stated that the Office of the Director of Public Prosecutions (ODPP) had built a strong case against Echesa and that the lower court should have found him with a case to answer, putting him on his defence rather than acquitting him.
"Accordingly, their acquittal on December 3, 2021, under section 210 of the Criminal Procedure Code (CPC) on those six counts is hereby reversed and set aside," Justice Kimondo ruled.
The judge ordered Echesa to appear in person before the Milimani Chief Magistrate on March 4, 2024, for mention and directions regarding his defence hearing in the arms case.
The High Court decision came after the DPP appealed the decision by trial magistrate Kenneth Cheriuyot to acquit Echesa and his co-accused persons, namely Kennedy Mboya, Daniel Otieno Omondi alias General Juma, and Clifford Okoth, claiming the state had failed to establish a prima facie case against them.
The DPP challenged the ruling by Cheruiyot, stating that it was made after hours at 7:30 PM, contravening the Judicature Act. The DPP argued that the judge was relying on extraneous matters, leading to the conclusion.
"The Republic contends that the evidence disclosed a prima facie case, particularly regarding the charges of conspiracy, which calls for a rebuttal from all five respondents. Therefore, the State prays that their acquittal be set aside and that they are placed on their defence," the prosecutor told the judge.
While discharging the former CS and his co-accused persons, the magistrate ruled that prosecutors failed to avail the key witnesses in the matter, including the two foreign complainants: Kozlowski Stanley Bruno, the CEO of the US-based ECO Advanced Technologies firm, and Mamdough Mostafa Lofty from Egypt.
"The evidence tabled in court has been considered, and I find that the first four accused persons have no case to answer. They are hereby acquitted," the magistrate ruled.
Magistrate Cheruiyot has found one of the accused persons, namely Businessman Chrispin Oduor Odipo, with a case to answer in three counts for being in possession of instruments to commit forgery offences.
Echesa had been acquitted of impersonating a person employed in public service by falsely presenting himself as the personal assistant of President William Ruto (then Deputy President) to two foreigners on February 13, 2020.
The magistrate blamed the prosecution for allowing the two foreign businessmen to leave the country without giving their evidence in the matter.
He also noted that according to the evidence tabled in court, including the CCTV footage from the Office of the Deputy President, it only shows Echesa's arrival with the two European men and his departure, and nothing more.
"The footage did not show Echesa and his visitors any offence as they did not the host," Cheriuyot noted.
The court noted that, according to the evidence on record, the deputy president was not aware of the visitors in his office at Harambee House.
In the Echesa case, he and his co-accused faced 15 counts of making false documents, conspiracy to commit a felony, obtaining money by pretences, and personation.
