- The magistrate said Parliament ought to develop regulations that will make prosecutors accountable for how they conduct and handle public cases.
- She said the evidence tendered at close of the prosecution's case was weak and could not be relied on to convict.
Image: DOUGLAS OKIDDY
The office of the Director of Public Prosecutions has once again been put on the spot by an anti-corruption court for bungling yet another high profile case.
Milimani magistrate Eunice Nyutu expressed her frustrations over dereliction of duty by the ODPP, saying it is high time regulations were enacted to rein in on prosecutors who neglect their duties.
Nyutu made the remarks as she acquitted former Nairobi Governor Mike Sonko and 16 others who had been accused of conspiring to corruptly embezzle Sh357,390,299.95 from Nairobi City government between May 24, 2018 and March 28, 2019.
The magistrate took issue with the prosecution for failing to conduct the case in a manner that promotes public interest.
"It's tragic that a prosecutor can lose sight of a case. The prosecution only managed to call six witnesses before they bungled up their own case. The conduct by prosecution in this case reeks of neglect of duty," said Nyutu.
To cure this defect, the magistrate said Parliament ought to develop regulations that will make prosecutors accountable for how they conduct and handle public cases.
These policies she said will ensure prosecutors are held for any civil liability that may arise from withdrawal of cases.
The emerging trend of acquittals has cast aspersions on the office of the DPP. Just two months ago, the same magistrate was forced to acquit former Treasury CS Henry Rotich and eight others in the Arror and Kimwarer dams case. What led to their acquittal was lack of evidence to secure a conviction as had earlier been vowed by the ODPP at the beginning of the trial.
Nyutu questioned why the ODPP proceeded to commence the proceedings without existence of evidence that they had initially.
And as she acquitted Sonko and his co-accused, the magistrate noted that only six witnesses out of the 37 lined up were called to testify in the case. She said no iota of evidence had been produced by the prosecution to show the accused persons conspired to embezzle the said funds.
"After carefully considering the testimony of six witnesses, the evidence adduced is inadequate to sustain the charges levelled against the accused persons," Nyutu said.
She said the evidence tendered at close of the prosecution's case was weak and could not be relied on to convict.
The case has been in court since 2019. But due to the Covid pandemic the trial took off in 2021 with the proceedings being held in camera as the witnesses were under protection.
Nyuu noted how on a number of occasions the prosecution sought adjournments even on the day the sixth witness was in court to be cross-examined.
The court said on 22 November last year, the advocate appearing on behalf of the DPP sought an adjournment and informed the court that he did not have instructions from the DPP to proceed with the hearing.
The application was declined by the court, marking the case by the DPP as closed.
The DPP appealed to the High Court but lost.
In the case, Sonko and his co-accused persons were charged with unlawfully acquiring Sh357,390,229 from the Nairobi City government in respect of tender number NCC/ WEDE and NR/276/2017-2018 for hire of heavy equipment and vehicles.
Sonko also faced money laundering charges following allegations that he received Sh3 million while having reasons to believe it was proceeds of crime.