Former Nairobi governor Mike Sonko has got a reprieve after the Director of Public Prosecutions (DPP) lost the fight to have a Sh20 million graft case against him revived following his acquittal by the anti-corruption court early this year.
At the High Court, the DPP had urged Justice Prof Nixon Sifuna to review a judgment by senior principal magistrate Peter Ooko who rejected evidence from Equity Bank Limited (EBL) terming it unacceptable in law.
Ooko dismissed a plea by the DPP to have nine bank statements and account opening documents in respect of the accused persons’ companies admitted as evidence.
The magistrate dismissed the plea by the DPP, in his bid to prove the graft case filed against Sonko, Fred Oyugi trading as ROG Security Limited.
Ooko stated in his ruling said the documents had not been authenticated through signing by an officer from the EBL.
Also, he thwarted the bid by DPP to have the impugned documents allowed as evidence saying “they did not have a forwarding certificate as required under Section 106B of the Evidence Act Chapter 80 Laws of Kenya.”
As a result of the refusal, the Sh20m graft case against Sonko, Oyugi and Ombok suffered a major setback.
The DPP appealed against Ooko’s ruling declining to admit the evidence before Justice Sifuna saying the magistrate erred in law and fact.
But defence lawyers John Khaminwa and Assa Nyakundi opposed the DPP’s saying “It is an affront to justice and an abuse of the court process.”
Khaminwa and Nyakundi urged Justice Sifuna to dismiss the review plea aimed at reinstating the impugned evidence in a feigned bid to implicate Sonko in the graft case.
In his ruling in July, Justice Sifuna concurred with Magistrate Ooko saying the impugned bank documents are inadmissible in law.
“Allowing the application by the DPP to admit the bank documents will otherwise be a miscarriage of justice and a mockery to the judicial process", the judge ruled.
The judge proceeded to dismiss the appeal by the DPP and ordered the case to proceed for hearing expeditiously before Ooko.
Dissatisfied by Justice Sifuna’s ruling the DPP moved to the second highest court seeking orders to compel Ooko to admit the bank documents.
But appeal Judges Patrick Kiage, Abida Ali Aron and Lydia Achode did not give any directions as the DPP has withdrawn it saying he is pursuing a negative order.
The DPP opted not to pursue a case to stay Justice Sifuna’s ruling dismissing the bank's evidence on October 3, 2023.
The DPP told Judge Kiage , Aron and Achode that he had realized he was pursuing a stay of a negative order. Indeed he prefers, quite correctly, to pursue the substantive appeal.
The judges stated: “In the circumstances, and without objection from Nyakundi and Khaminwa for Sonko we hereby mark the said stay application motion be and is hereby marked as withdrawn.”
The DPP has also appealed before Justice Sifuna another acquittal of Sonko in a Sh25m graft case by Chief Magistrate Douglas Ogoti.
Ogoti cleared Sonko of any wrongdoing in the graft case relating to the loss of funds in tender procurement at City Hall over three years ago.
Ogoti on December 21, 2022, Sonko and his co-accused person businessman Antony Ombok Jamal were freed for lack of evidence in the Sh25 million graft case, terming the charges as defective.
“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 through the defence has urged Justice Sifuna to uphold Ogoti’s decision and allow him to enjoy his freedom.
The DPP has lost the application both at the High Court and the Court of Appeal.