Court declines to terminate Ksh.357M graft case against KRA chair Anthony Mwaura

In the case, Mwaura and wife are charged alongside 15 others including former Nairobi Governor Mike Sonko.

However, the DPP made an application to withdraw the case against four accused persons  -- Mwaura, his wife and two companies linked to them --  claiming that their prosecution “is not in the interest of  administration of justice and public interest.” 

Senior Magistrate Eunice Nyutu has nonetheless dismissed the application on grounds that it lacks merit, noting that the prosecution failed to convince the court why only the case against the four accused persons -- Hardy Enterprises Limited, Toddy Civil Engineering Limited, Antony Mwaura and Rose Njeri -- should be discontinued.

“If now the DPP is of the opinion that it is not in the interest of justice or public interest for the prosecution of the 10th, 11th, 12th and 13th accused persons, what does this say of the other accused persons? It is therefore unclear why the DPP is seeking to withdraw against some and leaving out others in those circumstances."

“This court will not allow itself to be dragged down that slippery slope. In as much as the DPP has the discretion to withdraw a case at any stage, such discretion must be exercised judiciously. He cannot purport to cherry-pick accused persons for review of their cases simply because they "requested" him for review,” reads the court documents.

The court said the case is in public interest noting that it involves the alleged loss of public funds from a public body which is the Nairobi County Government hence the case should be heard on merit.

The Magistrate pointed out that allowing the DPP’s application to withdraw the case against the four alone would be a “discriminatory withdrawal of charges” adding that “justice must be seen to be done to all.”

“The DPP has failed to convince the court as to why the case against the 10th, 11th 12tH nth and 13th accused persons should be discontinued. This court will not be used as a rubber stamp for discriminatory withdrawal of charges."

“It is not enough that justice must be done to all. It must be seen to be done. I find that the application is without merit and the same is dismissed in its entirety,” ruled the court.

According to court documents, Mwaura and his wife were charged that between July 2018 and March 2019, being directors of Hardi Enterprises, they unlawfully received Ksh.357 million from the Nairobi County Government in respect to the payment of a tender for hiring of heavy machinery and vehicles.

They pleaded not guilty to the charges including the acquisition of public property, conspiracy to commit an offence of corruption, money laundering among others.

Meanwhile, the court has given the DPP the last chance to avail witnesses in the case which has continued to drag on for four years.

While adjourning the matter, Magistrate Nyuttu said the prosecution has been “tactfully absconding the case and employing a certain pattern of adjourning the case through short text messages and sending emails to the court and EACC lawyer”.

Only four witnesses have testified in the case with 37 yet to testify, and the prosecution is yet to close its case.

Last week, the DPP’s office failed to show up in court for the hearing of the Ksh.357 million graft case against Sonko and his co-accused persons.

No explanation was given to the trial Magistrate Eunice Nyutu as to why the prosecution failed to appear in court to prosecute the case.

The defence lawyers urged the court to terminate the case against Sonko and his co-accused persons under 204 of the Criminal Procedure Code (CPC) for the failure of the complainant (the ODPP) to appear in court.