Former Nairobi Governor Mike Sonko and 16 others can now breathe a sigh of relief after they were acquitted in the Ksh357 million corruption case for lack of evidence.
Milimani Magistrate Eunice Nyutu set free Sonko and his co-accused person including KRA board chair Antony Mwaura and wife Rose Njeri saying the prosecution failed to adduce enough evidence to enable her to place them on their defence.
"Having carefully considered the testimony of six prosecution witnesses, the evidence adduced is inadequate to sustain the charges levelled against the accused persons," Nyutu ruled.
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While freeing the former county boss, the magistrate blamed the Office of the DPP for bungling the case after calling only six witnesses in the case and declining to lead 38 other witnesses that they had indicated to testify against the accused Sonko and his co-accused persons over embezzlement of KSh357 million City Hall over four years ago.
"All the accused persons in this case are thereby acquitted under section 210 of the Criminal Procedure Code due to lack of evidence as a result of the reckless dereliction of duty by the prosecution," ruled Nyutu.
The magistrate put the Office of the DPP on the spot over how they handled the case terming the conduct by the Prosecution in the matter as reeks of neglect of duty.
In her ruling on a case to answer, the magistrate expressed her frustrations brought about by the DPP late last year by seeking several adjournments in the case.
"Even after the DPP availing two prosecuting counsels, the trial has encountered a fair share of adjournments a major of which are from the Prosecution. The court record will attest to this," Nyutu said.
She also took issue with the Prosecution for failing to conduct the case in a manner that promotes public interest and public good.
"It is therefore tragic that the prosecution would lose sight of the principles set out under the ODPP act and subvert the course of justice by cheer and recklessness," she said.
In her decision, Nyutu cited the decision of the High Court judge Nixon Sifuna in the case of former CS Treasury Henry Rotich Ksh63 billion Arror and Kimwarer case who was recently freed saying that the Prosecution should find a more honourable and sensible way of abandoning it's own case.
The magistrate noted the trial was frustrated by the DPP after she declined a request to have charges against Mwaura, his wife and the two firms namely Hardi Enterprises and Toddy Civil Engineering Company dropped under section 87(a) of the Criminal Procedure Code (CPC).
"It is on record the DPP declined to proceed with the hearing on the basis that their application for withdrawal of charges against the 10th 11th,12th, and 13th be heard first this is despite the court having given directions on mode of disposal of the said application. This is despite the giving directions that applications other than those arising from the testimony of a witness should not interfere with trial dates," Nyutu said.
"The DPP was well aware of these pretrial directions yet they stubbornly declined to proceed with the trial. This court in the spirit of compromise allowed them to adjourn and collapse a number of hearing dates pending the outcome of the application. It is only after the application was dismissed it emerged that indeed the Prosecution had no intention to proceed with the trial. The court record will show witness number six being present in court and due for cross-examination the prosecuting counsel vehemently declined to proceed even after being granted an adjournment to prepare and the case was deemed to have been closed on the following hearing dates the prosecutor counsel stubbornly maintained he did not have instructions to proceed the case."
On November 22, 2023, State prosecutor Alex Akura walked out of the courtroom abandoning the case, a minute after trial magistrate Nyutu declined his plea to have the case adjourned following the ruling to have the four dropped from the case.
As a consequence of the prosecution's actions to storm out of the courtroom and leaving no counsel to handle the case, the magistrate was forced to close the prosecution case against Sonko and his co-accused persons before all the line-up state witnesses had testified.
She noted that Article 157(11) of the constitution says that in exercising the powers, the DPP shall have regard to the public interest, the interest of the administration of justice and the need to avoid interference in a legal process.
The magistrate has however urged Parliament to develop regulations to make prosecutors accountable for how they conduct public cases and hold them accountable for negligence.
In the case, Sonko alongside 16 others among them private liability companies were accused of embezzling public funds to the tune of Ksh357 million from Nairobi County during his administration as the county governor.
It is alleged that Sonko on December 17, 2016, at Equity Bank Limited, received Ksh3 million from Toddy Civil Engineering Limited, property belonging to the Nairobi county government whilst knowing the property formed part of proceeds of crime.
Other charged in the case are Peter Mbugua Kariuki, Patrick Mwangangi, Ndaka, Andrew Nyasiego and Lawrence Mwangi Mukuru, businessman Antony Otieno Ombok alias Jamal, Arbab Auto Limited, ROG Security Ltd and High Energy Petroleum Ltd.
The KRA boss shot to infamy when his companies, Hardi Enterprises and Toddy Civil Engineering Company, were implicated in a City Hall scandal for allegedly receiving irregular payments amounting to Ksh102 million.
