Garissa governor suffers setback in Sh64m graft case

A judge has set aside the decision of the magistrate court to acquit former Garissa governor Nathif Jama and six others from graft charges involving the hiring of ambulances at Sh62.4 million.

Instead, Justice Charles Kariuki has issued an order for the withdrawal of the criminal charges under Section 87 (a) of the Criminal Procedure Code and discharging of the accused persons.

Withdrawing means the prosecution can file fresh charges against the accused after getting fresh evidence on the alleged criminal offences while acquitting means the accused had been set free and could not to be tried again for the same offence.

The accused were acquitted in October 2017 after the trial court dismissed an application by the Director of Public Prosecutions (DPP) to withdraw the charges.

However, Justice Kariuki said it was immaterial for the magistrate — under section 87(a) of the Criminal Procedure Code — to prohibit the withdrawal of charges on grounds that the accused would suffer prejudice if fresh charges are to be filed by the state.

“It is clear to me that the trial magistrate in disallowing the appellant application to withdraw the case exercised his discretion injudiciously,” said the judge while allowing an appeal lodged by the DPP.

Justice Kariuki added that the magistrate court in its ruling failed to consider whether the prosecution had acted improperly, not for the interest of justice or had acted beyond the powers vested by the Constitution.

The judge also noted that the magistrate court did not consider whether the prosecution was carrying out some arbitrary objective under the guise of discharging the functions of the office of prosecution.

“Nor did trial court note more importantly, that when either of the sub-sections under sections 87(a) and (b) of the code are invoked an aggrieved party has sufficient avenues to further his rights under the bill of rights,” said the judge.

The DPP moved to the High Court after the Garissa Chief Magistrate Cosmas Maundu disallowed his application made on October 16, 2017, seeking to withdraw the charges facing the former governor and his co-accused persons. At the time seven out of 11 witnesses had testified.

The trial court in its ruling delivered on November 8, 2017, declined the prosecution request and went ahead and acquitted the accused persons under section 210 of the Criminal Procedure Code (Acquittal of an accused person when no case to answer).