- Makari was found guilty as charged and handed a jail term of three years in 1983.
- The Court of Appeal acquitted him of the charge of stealing by servant in a judgment delivered on August 8, 1987.
Image: Jessicah Nyaboke
A former CEO of the Christian Health Association of Kenya has moved to the High Court in Eldoret seeking Sh5.9 million compensation from the government for malicious prosecution following his arrest 41 years ago.
Simiyu Makari through his lawyer Francis Omenya has sued the Attorney General, Inspector General of Police and the Director of Public Prosecutions.
He wants the court to award him the amount for malicious arrest, prosecution, conviction and sentence.
He had pleaded not guilty to the charge of stealing by servant more than Sh3 million from his former employer.
But Makari was found guilty as charged and handed a jail term of three years in 1983.
Aggrieved by the conviction and sentence, Makari appealed the judgement at the High Court in Nairobi.
The High Court dismissed his appeal and upheld his conviction and the three-year sentence that was slapped on him by the magistrate's court.
Not giving up, Makari moved to the Court Appeal where he got a reprieve after the three judge bench of Justices James Nyarangi (deceased), HG Platt and JM Gachuhi ( deceased ) acquitted him of the charge of stealing by servant in a judgment delivered on August 8, 1987.
By that time, Makari had already served the full sentence.
According to the judges, there was no evidence as to the terms of employment of the appellant in the service of the complainant.
They stated that the trial court could not tell what monies the appellant was entitled to, who could sign cheques and who could authorise payments.
"Some search evidence was necessary to prove that the appellant had no claim of right under section 268 (1) of the penal code. This case provides an excellent example of a cautionary tale, the moral of which is: do not overload a prosecution with unnecessary material," the judges ruled.
“We find merit in the appeal, which we allow, quash the conviction and set aside the sentence which unfortunately has already been served."
Justice Reuben Nyakundi is presiding over the case whose hearing has commenced. Christopher Wanjala, a retired inspector of police attached to the Directorate of Criminal Investigations headquarters has testified against the petitioner.
The case resumes hearing on September 7, 2024.