Why ex-NLC boss Swazuri Sh109 million graft case may be dropped

Only 6 have testified for the past 5 years when case commenced

In Summary

•Trial Magistrate had said case is murky and urged DPP to consider withdrawing the entire case.

•DPP subsequently moved to the High court to challenge that directive and it has since lost. 

Former National Lands Commission chairman Muhammad Swazuri on June 11, 2018
Former National Lands Commission chairman Muhammad Swazuri on June 11, 2018

The Director of Public Prosecutions (DPP) may have to consider withdrawing the Sh109 million graft case facing ex-NLC chairman Muhammad Swazuri.

This is after the ODPP lost its bid to reverse a decision that denied them an opportunity to introduce new evidence in the case.

The case has been in court for the last five years and only 6 witnesses have testified out of the 33 lined up by the state.

The trial magistrate Victor Wakumile had in April this year urged the DPP to consider withdrawing the entire file under section 87 (a) of the criminal procedure code and conduct a review of the same. This he said was to prevent abuse of the legal process

The directive was issued after the prosecution made an application seeking to be allowed to amend the charges to introduce new evidence and drop charges against one of the accused persons.

Wakumile in considering their application declined to allow for the amendment and introduction of new evidence for the reasons that the trial has substantially progressed.

“When the complainant had all the opportunity to place the evidence before the authority during the investigations and he inexplicably failed to do so then he cannot in all fairness be allowed to place the new evidence almost 5 years after commencement of the trial," he said.

Wakumile said the trial is murky because there are several accused persons who entered into plea bargain agreement with the DPP and they paid the initial deposit directed, only for the DPP and the Ethics and Anti Corruption Commission (EACC) to amend the agreement and decline to refund the deposit.

This prompted the magistrate to issue a directive that all the accused persons who deposited the money toward the failed plea bargain be refunded immediately.

Aggrieved, the prosecution filed an application at the High Court. It sought a review of the orders by Wakumile.

It wanted the High Court to replace Wakumile’s directives with an order allowing all the requests they prayed among them for amendment of the charge sheet to be granted.

The prosecution through counsel Evah Kanyuira also wanted the court to find that the trial magistrate has been biased in the way he has handled the case and is therefore unable to determine the matter.

But Justice Esther Maina in dismissing the DPP’s application said she found no illegality or unprofessionalism in the order of the trial magistrate.

“As for the allegation that the trial magistrate misconducted himself, I find that by stating that the prosecution “should consider withdrawing the entire case” the trial magistrate did not make an order to the DPP but it was a mere suggestion,” Maina said.

The Judge said the remarks by Wakumile were made in passing and should have been treated as such.

As for the prayer that the case ought to be removed from Magistrate Wakumile, Maina said that is an issue for recusal which should be made before the trial court.

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