- Justice Joel Ngugi said reviewing DPP's decisions would be to undermine his constitutionally protected independence.
- Mr Gikaria together with Boniface Mwangi, Elijah Kinyanjui, Moses Gichangi and Francis Kahero were charged with willful and unlawful demolition of a perimeter wall valued at Sh7 million.
- In a letter dated September 29, 2016, the DPP directed the prosecution to proceed based on evidence tended at the time.
The High Court has upheld the decision of Director of Public Prosecutions (DPP) to withdraw criminal charges facing Nakuru Town MP David Gikaria and four activists over malicious damage of a private property alleged to be on a grabbed public school land.
While dismissing a request filed by Ense Ltd seeking a judicial review and quashing of a magistrate court's ruling that terminated the trial, Justice Joel Ngugi said reviewing DPP's decisions would be to undermine his constitutionally protected independence.
The judge ruled that it cannot be said the DPP abused his powers or discretion under the Constitution by withdrawing the charges.
The company was aggrieved by the decision of the DPP to discontinue the case pending investigations on claims that the subject land is a public property belonging to Naka primary school.
Mr Gikaria together with Boniface Mwangi, Elijah Kinyanjui, Moses Gichangi, and Francis Kahero were charged with willful and unlawful demolition of a perimeter wall valued at Sh7 million, the property of Ense Limited. They committed the offence on May 19, 2016, at Naka Estate in Nakuru township.
They were part of a mob of people who descended on the fence claiming that it had been used to illegally carve off public land meant for Naka Primary School. The ostensible aim of the mob was to prevent what it perceived as land grabbing by Ense Ltd.
In its application for judicial review, the company argued that immediately the criminal charges were preferred, Mr Gikaria and his co-accused began interfering with the Prosecution.
This culminated with the files being called for review by the DPP in Nairobi. The result of that review was a confirmation by the DPP, through Deputy Director Nicholas Mutuku, that the DPP had carefully analysed the two criminal files and was satisfied that there was sufficient evidence to support the charges already filed.
In a letter dated September 29, 2016, the DPP directed the prosecution to proceed based on evidence tended at the time which showed Ense Ltd was the bonafide owner of the subject parcel of land; and that the accused persons had acted maliciously when they “invaded” the property.
However, about a year later, before the criminal trial could conclude, the DPP wrote a letter dated January 9, 2018, reviewing the decision to charge and discontinued the criminal trial.
The letter narrates that new information had come to the attention of the DPP that necessitated the withdrawal of the criminal cases "pending the outcome of the comprehensive investigations by the DCI and EACC on possible commission of offences by various persons.”
The new information that the DPP referred to in his letter was gleaned from the records of the Parliamentary Departmental Committee on Land following a petition and a report was tabled before parliament.
The report indicates that the land in question was dealt with by the National Land Commission (NLC) which gave two conflicting decisions.
Recommendations of the committee included that the EACC, DCI, and DPP undertake an audit and prosecute persons who committed transactions in the said land.
In particular, the committee urged for investigations and prosecutions of the former trustees of Naka Primary School namely Joshua Kiptoo Toroitich, Harun Chelanga, and Stephen Kibowen who sold the said land.
It also recommended that the three State agencies (EACC, DCI, and DPL) conduct a forensic audit of the entire land transactions with the view to prosecute all public and private individuals involved.
While defending his decision to withdraw the charges, the DPP informed the court that as per the Kenya Gazette of July 2017 the parcel of land in question is vacant and belongs to a public school. Hence, it is imperative to establish the status of the property in issue before further court process is undertaken.
The court heard that DCIO Nakuru has already embarked on further investigations.
Ense Ltd complained that it was not consulted before the decision to discontinue the criminal trial was made.
But Justice Ngugi ruled that while it would be prudent for the DPP to hear an alleged victim’s representations before withdrawing a case, there is no requirement that the consent of the alleged victim be sought before such a withdrawal.
The company also faulted the DPP’s decision as being unreasonable or irrational. It questioned how could the DPP have considered all the evidence in 2016 and permitted the criminal cases to commence and continue only for him to perform a diametrically opposed analysis a year later.