NYS suspect fails to save his assets

One of the suspects implicated in the National Youth Service (NYS) scandal has lost a bid to overturn a decision ordering the seizure of his Sh35 million.

Justices Asike Makhandia, Gatembu Kairu and Lydia Achode dismissed the appeal filed by James Thuita saying the new evidence he was seeking to introduce to support his case was always available but he declined to produce it.

Justice Mumbi Ngugi had in 2020 ordered Thuita’s millions to be seized following an application filed by the Assets Recovery Agency.

Mumbi in issuing the orders said the Agency was able to demonstrate that Thuita had received funds fraudulently from the National Youth Service (NYS), which were then transferred to accounts owned by their family members and associates.

After this decision, Thuita made an application seeking to have the final order of Mumbi reviewed.

He claimed to have in possession new evidence to prove that he was dealing in legitimate business.

He claimed that he had shared the evidence with his advocates but they allegedly didn’t use it in his defense thinking it was premature.

His application for review was subsequently declined leading to the filing of an appeal before the Court of Appeal

However, the appellate Judges said for one to successfully apply for a review, the applicant must specify the new evidence and how it was discovered, demonstrate the potential to alter the outcome and provide proof that the evidence was not available at the time of the original proceedings despite reasonable efforts to obtain it.

"From the record, it is clear that the evidence being sought to be introduced was available during the trial but the advocate and the appellants agreed that the same should not be availed as it was not necessary, was premature and or since the appellants had not been convicted of any relevant offence," said the appellate Judges.

It was their finding that the evidence was always available but Thuita and the other appellants declined to avail the same for reasons best known to them

 "Thuita’s approach to blame his previous advocates for not having the documents produced and at the same time telling the trial court that the documents could not be produced as they were not available having been lost or misplaced when their offices were raided by State officers smacks of want of candidness," they said.

In dismissing the appeal, the Judges said the advocate’s failure to present evidence was not a genuine mistake but a strategic decision.

"Therefore, the appellants’ reasoning that their advocate’s failure to produce documents was excusable is not valid. The applicants must bear the consequences of their advocate’s strategic choices,"  they said.