•Appellate judges said the appellate court has no jurisdiction to stay the criminal proceedings in the anti-corruption court.
Director of Public Prosecutions Nordin Haji is free to prosecute Kapseret MP Oscar Sudi on charges he presented fake academic papers to the IEBC for clearance to vie for the seat in 2013.
The Court of Appeal on Wednesday dismissed the lawmaker's appeal against a decision by the High Court which dismissed his application to stop the charges.
Sudi had sought orders stopping the DPP from prosecuting him claiming his constitutional rights had been violated by the investigations into the fake academic papers.
He also sought compensation, an order to quash the charges and also to prohibit the DPP from instituting any other criminal proceedings in respect of his academic qualification.
The MP was charged with several offences ranging from forgery of an official document to providing false information, contrary to Section 349 and 345 of the Penal Code.
Justice Hedwig Ongudi, however, threw out the application for lack of merit saying the issues contested could be determined by the trial court.
The judge said the lawmaker could not claim his rights to fair administration were violated by the investigating authorities.
She said the MP failed to demonstrate how his rights were violated and added that the EACC and DPP acted within the confines of their mandates.
Sudi then moved to the Court of Appeal seeking orders to overturn the ruling by justice Ongudi which was delivered in July 2017 – a month to the August 2017 General Election.
In his view, the appeal raised arguable issues and would be rendered useless should the criminal proceedings be allowed.
But justices William Ouko, Wanjiru Karanja and Asike Makhandia held that they found no merit in the appeal filed by the lawmaker in September 2018. They slapped Sudi with costs.
The judges said the appellate court has no jurisdiction to stay the criminal proceedings in the Chief Magistrate’s Court – in this case, the anti-corruption court.
“In this case, what the applicant seeks to be stayed are the criminal proceedings instituted and pending in the chief magistrate’s court.”
“While it is not lost to us that the applicant had sought to challenge the constitutionality of the said criminal proceedings in the constitutional petition filed in the High Court, the said criminal proceedings are not the subject of the appeal before the appeals court” the judges said in their ruling.
The judges further said the orders sought must be issued in relation to the decision or proceedings of a court which is the subject of an intended appeal.
EACC, in opposing the appeal, argued that it lacked merit on the grounds that the application was not arguable and would not be rendered useless if the order sought was not granted.
The agency further held that it was in the public interest for Sudi to be prosecuted to the logical conclusion of the matter since he is a state officer.
“Furthermore, the trial before the chief magistrate’s court had already commenced wherein seven out of 14 prosecution witnesses had already testified,” the EACC told the appeals court.
In its investigations, the EACC said it found out that the MP presented forged certificates to the electoral commission for nomination to vie as MP.
The agency said Sudi’s diploma certificate in business management and KCSE certificate were forged, with further details showing he made a false declaration under oath.
EACC held that the lawmaker uttered the said false documents to itself and the IEBC with the intention to deceive the two commissions.
The commission had received information in 2015 that the MP did not possess the qualifications he claims and subsequently launched investigations.
Edited by P.O