•The suspects' lawyers challenged the decision of the High Court that their clients have a case to answer.
• Justice Patrick Kiage, Justice Milton Makhandia and Justice Otieno Odek stayed the execution of High Court order for the accused to be placed on their defence with a ruling on their application set for February 20, 2020.
Five suspects in Miwani's Sh2.3 billion land fraud case will wait until February next year to know whether they will be put on their defence or not.
This follows their application at the Kisumu appeal court.
A Nairobi court in October put the suspects on their defence, following a successful appeal by the DPP over their acquittal.
Sukhwinder Chatte, Ian Maina, Philip Odongo, Epanaito Okoyo and Crossley Holdings Limited were acquitted for lack of evidence.
Their co-accused Adulakadir Elkindy, a former magistrate, and Moses Osewe, were found to have conspired to defraud the state firm of 9,394 acres between May 21, 2007, and January 30, 2008.
Elkindy was charged with abuse of office, but she said her signature was forged to facilitate the alleged transfer. Osewe is said to have failed to collect land rates.
One of the accused, John Gitau, died before the ruling was made.
On Thursday, a three judge-bench – Justice Patrick Kiage, Justice Milton Makhandia and Justice Otieno Odek – stayed the execution of the High Court order for the accused to be placed on their defence. The ruling on their application is set for February 20, 2020.
The accused's lawyers Gichaba Wesley and Richard Onsongo requested stay orders in proceedings at the lower court issued and that of the miscellaneous appeal in Nairobi court pending the hearing and determination of the appeal.
Onsongo said it was contradicting that the same case was being taken back to the same court that acquitted their clients.
“The High Court made a decision without looking at the exhibits, adding that the records filled in the High Court dint have such,” he told.
Onsongo said that should his clients be put on defence, the main purpose of the appeal would be rendered null.
Last month, while setting aside the orders, trial magistrate Julius Ngarngar put two suspects on trial and acquitted seven others. The court ruled that the evidence on record was sufficient to require placing all the accused on their defence.
"I find and hold that all accused persons before the chief magistrate, including the five respondents before this court, should have been placed on their defence and I so direct,” High Court judge Mumbi Ngugi ruled.
The prosecution had prayed that the court should direct that the case be placed for hearing before any magistrate other than the trial magistrate.
However, Judge Ngugi said she could not grant prayers and the case will be heard by Ngar'ngar.
While appealing the matter, the Directorate of Public Prosecutions faulted the acquittal. Assistant DPP Frederick Ashimosi in July told the court he had sufficient evidence against the five.
He said they had proof the value of the grabbed property was Sh2.3 billion and 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 Ngugi.
The accused are said to have conspired to defraud the state through forgery, fraudulent disposal of public property and fraudulent.
The accused are said to have conspired to defraud the state through forgery, fraudulent disposal of public property and fraudulent acquisition of public property.