• The DPP had filed an application on September 4, indicating that he intended to withdraw the case facing Gathanju and his two co-accused.
• The trio were charged with conspiring to steal from the church and stealing Sh50.9 million.
The court will on Tuesday give directions on the Sh50.9 million case facing former Presbyterian Church of Eastern Africa moderator David Gathanju and two others.
The hearing of an application made by the Office of the Director of Public Prosecutions (ODPP) to withdraw the case failed to start when the matter came up for mention at the Kiambu law courts on Friday.
The DPP had filed an application on September 4, indicating that he intended to withdraw the case facing Gathanju and his co-accused.
Gathanju, who served as the highest-ranking official of the church’s General Assembly as a moderator between 2009 and 2015, is charged alongside James Muiruri and Peter Mwangi — both former employees of Presbyterian Church of Eastern Africa (PCEA).
Muiruri is a former finance officer while Mwangi is a former communications director. They have been charged that between January 2, 2016, and June 30, 2017, at PCEA headquarters on Nairobi's South C Estate, they conspired to steal from the church.
In a second count, they have been accused of stealing Sh50.9 million, which came into their possession by virtue of their employment. The three have denied the charges and are out on a Sh1 million bond each.
The DPP made the application before Kiambu chief magistrate Patricia Gichohi who ordered that it be heard and determined by the trial court.
Senior principal magistrate Stella Atambo has been handling the case since the accused were charged in October 2017.
However, when the matter came up for mention on Friday, Atambo was not present. Senior resident magistrate Wilson Radini held brief for her.
Defence lawyers John Njuguna, Danstan Omari and Stanley Kangahi, appearing for the first, second and third accused respectively, concurred with the prosecution to have the application heard in the same court on Tuesday.
While applying to withdraw the case on September 4, prosecution counsel Donnex Ongila told Gichohi he had received instruction in line with Section 87(A) of the Constitution.
The decision by the prosecution came three months after the complainant in the case Rev Peter Kania died of Covid-19. By the time of his death, Kania was the secretary-general to PCEA General Assembly and the second in command in the church leadership.
Ongila, however, told the court that the decision to withdraw the case was reached before the complainant passed on.
The defence lawyers then opposed the bid by the DPP to withdraw the case under Section 87(A). Lawyer Njuguna said the DPP was inviting the court to make a ruling on a case that is already before another court.
He said the application by the ODPP to withdraw the case should be made before the court that has been handling the case. Then, senior principal magistrate Atambo, who was handling the case, was on leave.
Omari supported calls by Njuguna that they appear to hear the application before the trial court.
Omari said the DPP should alternately terminate the case completely given that the complainant is dead, saying that withdrawing the case under Section 87 (A) only applies when the prosecution is looking for more evidence, pending investigations or waiting for the availability of the complainant.
“The complainant is dead, and it’s unfortunate he will never come back to life. Therefore, we object to the withdrawal of the matter under Section 87 (A). We demand a total termination of the matter. Let the ODPP terminate the case using another section of the law,” Omari said.
"The law does not allow the DPP to substitute complainants or proceed without the complainant. That’s why the matter should be terminated in its entirety."
Omari said prior to the accused taking a plea, they pleaded with the court and the church to allow the matter to be settled out of court but they could hear none of it.
“The prosecution refused to have the matter settled outside the court and said they had a watertight case and were only waiting for the time for conviction and therefore the matter must proceed, and the accused people took a plea,” he said.