Five of the accused in the Sh2.3 billion Miwani Sugar land grab case might have counted themselves lucky when they were acquitted of charges.
A legal battle, by any standards, can be a humbling experience for accused persons. Therefore, Sukhwinder Chatte, Ian Maina, Philip Odongo, Epanaito Okoyo and Crossley Holdings Limited heaved a sigh of relief when they were let loose for lack of evidence.
They had been charged alongside former magistrate Adulakadir Elkindy and Moses Osewe with conspiracy to defraud the Miwani-based company of 9,394 acres between May 21, 2007, and January 30, 2008.
But just when they thought all this was over, the DPP sprang a surprise on them by revisiting the case. Noordin Haji, through Assistant Director of Public Prosecutions Frederick Ashimosi, on Thursday told a Nairobi court he has sufficient evidence against the five. He has appealed the judgment that let Chatte, Maina, Odongo, Okoyo and Crossley Holdings off the hook.
In Kisumu, chief magistrate Julius Ng'arng'ar had ruled that Elkindy and Osewe had a case to answer and put on trial. Thirty witnesses testified. Elkindy was charged with abuse of office. She said her signature was forged to facilitate the alleged illegal transfer. Osewe was accused of willfully failing to collect land rates. Ng'arng'ar, however, acquitted the rest for lack of evidence.
One accused person, John Gitau, had died before the ruling was made and is no longer a subject of the case.
On Thursday, Ashimosi faulted the acquittal. He told the Anti-Corruption and Economic Crimes Division Court that they have proof that the value of the grabbed property was Sh2.3 billion. He took issue with Ng’arng'ar's assertion that the investigation was shoddy.
"We will also prove that the land in question belongs to Miwani Sugar Company and not as earlier ruled,” he told Justice Mumbi Ngugi while formally submitting the appeal.
The accused conspired to defraud the state through forgery, fraudulent disposal of public property, and fraudulent acquisition of public property, the court heard.
Ashimosi said parts of the ruling were contradicting. “The magistrate ruled that Osewe and former magistrate Abdulkadir have a case to answer on charges of abuse of office, yet he established that there was no proof of a conspiracy against Chatte and Crossely Holdings, to whom the property was transferred.”
He said sufficient evidence at their disposal shows Maina, Kimani, Odongo and Okoyo aided the irregular transfer process by forging documents.
Justice Ngugi will rule on the Appeal on September 24.
Last week, the prosecution expressed confidence that the appeal was arguable and had a reasonable chance of success.
However, in an affidavit, Chatte rejected the appeal. He said the application was bad in law, misconceived and is an abuse of court process according to sections 356 and 357 of the Criminal Procedure Code.
(Edited by F'Orieny)
