The High court has declined to review a decision of a magistrate to convict a former director of the Kenya Medical Research Institute (Kemri), Prof Davy Koech to a six-year jail term for corruptly acquiring Sh19.3 million.
Prof Koech wanted the court to review the decision of magistrate Victor Wakumile rendered in September 2021 arguing that it was faulty.
He also sought an order quashing the conviction and the subsequent sentence imposed by the lower court.
But Justice Esther Maina dismissed the request and said Prof Koech failed to demonstrate how the trial court erred in convicting him for the corruption offence.
"I have considered the application and the submissions by Prof Koech and the Prosecution and my finding is that the application has no merit," Justice Maina said.
The judge threw out the application for two reasons, the first being that Prof Koech did not demonstrate irregularities in the trial court’s judgment to warrant her quashing the conviction and the sentence.
She explained that a review application is used to consider the correctness, legality, propriety of any finding or sentence and the irregularity of the lower court. None of the above considerations was demonstrated by Prof Koech, said the judge.
Secondly, the judge said that she did not find that the trial court’s decision could be voided because of an arranged agreement between the state and Prof Koech.
She noted that Prof Koech wanted the court to quash the conviction because the State had undertaken not to prosecute him if he paid the sums that were in question.
“The reason Prof Koech gives is that he is asking this court to quash his conviction as the State had undertaken not to prosecute him if he paid the sums. The lower court had directed that there should be undertaking in writing as per Section 56(b) of the Anti-Corruption and Economic Crimes Act. When l went through the record l did not find such undertaking to warrant this court to declare the proceedings in the trial court were null and void,” said Justice Maina.
She noted that there is a pending appeal related to the same trial court’s judgment.
Prof Koech was convicted after being found guilty of three counts related to the fraudulent acquisition of public property and was fined Sh19.6 million or alternatively serve six years in jail.
He had been charged that on August 17, 2006, in Nairobi, he fraudulently acquired Sh800,000 the property of Kemri.
The second and third charges read that on December 12, 2006, he irregularly acquired Sh6 million and another Sh12.5 million from the research institution.
He faced alternative counts which indicated that he used his office to corruptly confer to himself monies held in the account of Vector Biological and Control Research (VBCR).
He was accused of transferring Sh19.3 million from the institution’s bank accounts to his personal accounts when he was the Managing Director. The funds had been allocated to the Center for Disease Control, Kisumu.
The trial magistrate noted that Prof Koech had returned with interest, the institution’s research money he had acquired corruptly and therefore no loss was suffered.