• Magistrate Ogoti dismisses application made by former governor that charges are defective.
• Kidero and ten others were last year charged with conspiring to commit fraud which led to the loss of Sh213 million.
An anti-corruption court has dismissed claims by former Nairobi Governor Evans Kidero that the Sh213 million corruption charges against him are defective.
Douglas Ogoti ruled that all the charges preferred against Kidero meet the threshold of the law in criminal procedure.
“There were no good reasons that were placed before me to enable me to interfere with them,” he said.
Kidero and ten others were last year charged with conspiring to commit fraud which led to the loss of Sh213,327,300 at the county government between January 16, 2014, and January 25, 2016.
Early this month, the former governor filed an application claiming the charge sheet was defective.
Through his lawyer James Orengo, Kidero argued that count one relates to an offence that does not exist in law. He also said the particulars in the charge sheet did not disclose an offence.
He wanted the court to order that the offences of dealing with the suspect property as set out in counts two and three of the charge sheet be separated from the others and he be tried separately.
On Monday, Ogoti concluded that the charge sheet was not defective but disclosed a complete offence.
He also said he found no good reasons to order for separate trials as requested by Kidero. In arriving at the ruling, the court considered undesirability of duplicating proceedings, extra expenses, inconveniences and whether it will cause prejudice.
Kidero had also claimed the term fraud is not defined in the Anti-Corruption and Economics Crimes Act (ACECA) whereas the term corruption is defined.
But the magistrate said the fact that the term ‘fraud’ on its own is not defined in ACECA is not a ground to dismiss a charge of corruption as the fraud itself forms part of the charge of corruption.
“The term fraud is well defined in our law and lack of its specific definition in ACECA cannot and does not vitiate a charge of corruption,” he said.
The court also dismissed an application by Kidero’s co-accused John Githua and Grace Njeri of Lodwar Wholesalers and Ngurumani Traders Limited.
The two challenged their prosecution on grounds that there was a tax dispute pending at the Tax Appeal Tribunal (TAT) which was initiated before the decision to have them charged.
But Ogoti said the court has jurisdiction to hear matters concerning tax in their criminal aspect.
He referred to section 193 A of the Criminal Procedure Code which states “the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings,”.
The case will now proceed to full hearing beginning May 6.
Separating the count will mean duplicating trials, causing a lot of prejudice and inconvenience to the witnesses who will have to come to court again and againMagistrate Douglas Ogoti