• Mutua argued that his intended prosecution was unlawful because the Director of Public Prosecution (DPP) had decided not to charge him.
• He was instead to appear as a witness in a case where four former directors of Malili Ranch are charged with stealing Sh553 million.
The High Court has stopped the prosecution of former Law Society of Kenya chairman Eric Mutua over the sale of Malili Ranch.
Mutua argued that his intended prosecution was unlawful because the Director of Public Prosecution (DPP) had decided not to charge him.
He was instead to appear as a witness in a case where four former directors of Malili Ranch are charged with stealing Sh553 million.
Mutua argued that his prosecution will in the circumstances lead to self-incrimination and double jeopardy.
Justice Weldon Korir certified his case as urgent and suspended criminal proceedings against Mutua in relation to the sale of the land.
Korir directed that the case be heard on February 18.
According to the charge sheet, Mutua stole Sh553 million, proceeds sale of 5,000 acres of a piece of the disputed land.
The offence is alleged to have been committed between 25 June and 19 march 2010 in Nairobi and Machakos counties.
Mutua’s law firm acted for Malili Ranch Limited in a transaction relating to the sale of its land to the government.
He received instructions from the ranch instructing his firm to act for them following a tender advertised in the dailies by the Ministry of Information for the purchase of 3,000 acres of land.
The advocate says he cannot be a witness and an accused person in the same matter.
“The intended prosecution is, therefore, a gross abuse of court process and the criminal justice system,” he says.
He says it’s been over 10 years since the transaction was completed and it is difficult to trace certain documents which would form part of his defence.
“I also handed over some critical documents to the police when they were carrying out investigations,” he says.
Mutua had previously testified as a prosecution witness in a criminal case involving the same matter.
According to court documents, police officers from the DCI came to his office on February 10 and demanded that he accompanies them to their headquarters.
“Upon reaching the offices, I was told there were instructions from Monda, a prosecution counsel from the DPP that I be charged with the offence of theft and making a false document,” he says.
He says in the course of the discussion, an officer asked him why he has involved himself with the issue of Building Bridges Initiative (BBI).
“I then recollected that on or about February 1, while I was giving a speech in a graduation ceremony in Perth Australia, I gave my opinion on whether there was a need to amend the Constitution in the context of the BBI,” he says.
Mutua says the officers later took his fingerprints but never wrote a statement.
“I found the entire exercise unjust and violation of my rights,” he says.