DPP: Magistrate Grossly Misdirected Himself By Relying On An Old Charge Sheet In Acquitting Sonko

NAIROBI, Kenya Dec 26 -The Director of Public Prosecution (DPP) has appealed the acquittal of former Nairobi Governor Mike Sonko in a Sh20 million graft and money laundering case.

The DPP has appealed against the entire ruling and the resultant acquittal, saying the magistrate grossly misdirected himself by relying on an old charge sheet filed in court on January 27, 2020 in making a finding that the charges were defective.

According to the DPP Anti-Corruption Chief Magistrate Douglas Ogoti disregarded the substituted charge sheet filed in court on September 7, 2020, disregarded the evidence on record and also failed to make a finding whether or not the prosecution had established a prima facie case against the suspects.

“The learned Honourable Trial Magistrate erred in fact and law by misapplying the law by holding that there was a defective charge sheet whilst he had already admitted the amended charge sheet filed in court on September 7, 2020 and did not reject the said charge sheet under section 89(5) of the Criminal Procedure Code (CPC),” the DPP said in appeal papers.

Under Section 89(5) of the CPC, the magistrate should refuse to admit a charge sheet when he or she is of the opinion that it does not disclose an offence.

“The Trial Magistrate erred in law and fact by failing to analyze the evidence adduced by nineteen (19) prosecution witnesses thereby arriving at an erroneous finding, and failed to deliver substantive justice and relied on technicalities in acquitting the accused persons,” the DPP said.

The court, according to DPP, only placed heavy premium on the suspects’ submissions, leading to their acquittal.

Christine Nanjala, a senior Assistant DPP, said the prosecution wanted the acquittal to be quashed in its entirety and the court to return a finding that the prosecution had made out a prima facie case requiring the accused persons to be placed on their defence.

The prosecution further said that the Magistrate did not consider the provisions of section 214 of the CPC, which allows for amendment or substitution of charge sheet at any stage of a trial before the close of the case for the prosecution.

The DPP, in High Court Anti-Corruption and Economic Crimes Appeal (HCACECA) No. E016/2022, said the Magistrate also failed to make a finding on each and every count as per the amended charge sheet, adding that the ruling did not also comply with section 169 of the CPC.

Section 169 of the CPC requires that every judgement shall contain the point or points for determination, the decision thereon and the reasons for the decision.

According to the DPP, the magistrate grossly misdirected himself in applying the provisions of section 210 of the CPC (Acquittal of accused person when no case to answer) so mechanically and against public interest in the ruling.

The Anti-Corruption Court on December 21 acquitted him of all corruption charges relating to the loss Sh20 million in tender procurement at City Hall over three years ago for lack of evidence.

Ogoti termed the charges as defective and that the prosecution failed to adduce evidence identifying the companies that were said to have been paid the money.

“I find that the prosecution has failed to prove the case beyond reasonable doubt. The entire case against all accused persons collapses under section 210 Criminal Procedure Code (CPC); they are now all acquitted,” Ogoti said.

Sonko was charged alongside Antony Otieno Ombok alias Jamal and ROG Security Limited with conspiring to extort Sh20 million as an inducement to facilitate payments to Web Tribe Limited by Nairobi County government in January 2019.