- Justice can only be done and seen to be done if the criminal case before the lower court is allowed to proceed, judge said.
- No good reasons were given to withdraw the case, except that they were orders from above, he said.
The High Court has dismissed the DPP's request to withdraw fraud charges against two people accused of cheating a city businessman out of Sh150 million property.
No reason was given for the application to drop the charges and Judge Ogembo Ogola said justice must run its course. He said justice can only be done and seen to be done if the criminal case before the lower court is allowed to proceed in the normal manner.
“In ordinary criminal proceedings, one would expect the prosecution — the Director of Public Prosecutions side — to be pulling in the same direction as the complainant," Ogola said.
"In this case, they seem to be pulling in different directions. Instead, the prosecution side seems to be on the same side with the accused.”
Ogola ruled he saw no merit in the DPP's application to drop charges against ARJ Capital Ltd director Ahmed Jibril and his co-accused Farah Mohammed.
Jibril and Mohammed were charged with conspiracy to defraud Francis Njeru of his land at the Nairobi Inland Container Depot on October 19, 2015.
“I am not convinced the action of the [DPP] to withdraw the criminal case before the subordinate court is in furtherance of the public interest, the interest of the administration of justice and the need to avoid abuse of the legal process," the judge ruled.
Njeru had challenged the DPP's request to withdraw charges, saying it was not "consistent with the public interest, administration of justice and proper use of the criminal legal process”.
He argued the DPP and the accused persons had not challenged the charge sheet as being defective or given him reasons for the application to withdraw as required.
The DPP moved to the High Court to challenge a ruling by the magistrate’s court that allowed the matter to proceed to full trial.
Jibril and Mohammed were also charged with making a false title document and obtaining land registration by false pretences.
Jibril denied the charge before Milimani resident magistrate R. Aganyo on January 21 this year and was released on Sh2 million bond. Njeru had sued the China Road and Bridge Corporation for allegedly occupying the land illegally.
ARJ Capital Limited, owned by Jibril and Mohammed, then moved to court to be enjoined in the suit as interested parties. ARJ had leased the land to China Road and Bridge Corporation.
Ogembo ruled on Friday his court takes the position that in criminal proceedings, justice must be done to both the accused and the complainant, “both being prime participants in the process".
“And for the prosecution to succeed in their application, both the accused and the complainant ought to appreciate that the determination of the prosecution to withdraw the case is aimed at ensuring justice is done,” he explained.
He added that the complainant was never advised by the prosecution on the application for the withdrawal.
“This remains the position to date. Before the trial court and indeed before this court, the complainant has vehemently opposed the withdrawal,” the judge stated.
He said no good reasons were given for withdrawal except that they were orders from above.
(Edited by V. Graham)