Lawyers representing embattled Football Kenya Federation (FKF) president Nick Mwendwa led by veteran lawyer Eric Mutua, read malice in the action by Director of Public Prosecution (DPP) to sign a charge sheet of their client on Monday, despite not being their mandate and against a court order.
Charge sheets are supposed to be signed by the Director of Criminal Investigations (DCI) and in this particular case, the DCI refused to sign the charge sheet three times following a running court order, before the DPP decided to sign the charge sheet themselves.
The lawyers have accused the prosecution of forum shopping in a bid to stop Mwendwa from returning to office after several allegations planted against him failed to materialise.
While appearing before a Kiambu Court in response to a request by the Director of Public Prosecution (DPP) to charge Mwendwa over theft, the lawyers claimed the case was being prosecuted out of malice.
“There is no new case that the DPP has brought to this court.. It is the same case they had filed previously and was dismissed on July 6 by an anti-corruption court in Nairobi.
“What they did was to go and change the case from attempt to acquire public property to theft. But the facts are the same and there is no new evidence. To us it is forum shopping and an attempt to bar our client from coming back to office,” said lawyer Victor Omwebu.
On July 6, presiding Magistrate Eunice Nyuttu of the Milimani Anti-Corruption Court allowed the DPP to withdraw charges against Mwendwa as the prosecution was unable to prosecute due to luck of witnesses.
The case had been scheduled for hearing over ten days from July 6, but on the eve of the hearing, the prosecution attempted to push it forward after claiming to have come into possession of fresh evidence and needed time to go through it and present it to Mwendwa’s lawyers before the matter could proceed.
However, magistrate Nyuttu could hear none of it and threatened to cite the DPP for contempt of court a move that forced the prosecution to withdraw the matter under section 87 (a).
Mwebu says it was therefore surprising that on the same date, the DPP was withdrawing the case, they had filed fresh theft charges in a Kiambu court with the same prosecutor Evelyn Onunga who had been handling the matter in Nairobi.
“The new charges are fishy and an attempt at forum shopping. Furthermore, our argument is that the said prosecutor did not have the right to prefer fresh charges as a court of appeal ruling had stayed a ruling giving prosecution powers to the public prosecutor.
“The import of the court of appeal ruling on June 12 was to withdraw authority to draft and prepare charge sheets from lawful prosecutors and revert it back to the National Police Service in this case.
“In our view the charges have not been properly put before the court,” said Mwebu.
The public prosecutor Noordin Haji presented evidence in court and asked to be allowed to charge Mwendwa with theft of Sh8.5million and conspiracy to defraud the football body Sh29.5million.
The matter will be decided on November 2, when the court makes a ruling on whether Mwendwa should be charged or not.
Important dates
November 12:2021, police arrest Nick Mwendwa and remand him at Gigiri police station.
November 15: DPP asks the court to grant him 14 days to investigate the matter but the court declines and gives him 7 days to either prosecute the case or drop it.
November 25: Prosecution makes an appeal to have the file closed and it is awarded.
November 26, 2021: Mwendwa is arrest again and taken to DCI headquarters on Kiambu Road.
November 29:2021: Mwendwa is charged with three counts of fraudulent acquisition of public property and released on a Sh.10million cash bail.
December 20: A pre-trial hearing is held and the matter is moved to January 24, 2022 when the cost lists the matter for hearing for July 5,6,7,8,12 and August 2,3,4,5 and 22,2022.
July 5, 2022: The prosecution makes fresh application to adjourn the matter citing the fact that they have received new evidence and need time to go through it.
July 6:2022: After failing to adjourn the matter, the DPP files an application to withdraw the matter under section 87(a).
July 7, 2022: The DPP files a fresh charge of theft at a Kiambu court.
November 26, 2021: Mwendwa is arrest again and taken to DCI headquarters on Kiambu Road.
November 29:2021: Mwendwa is charged with three counts of fraudulent acquisition of public property and released on a Sh.10million cash bail.
December 20: A pre-trial hearing is held and the matter is moved to January 24, 2022 when the cost lists the matter for hearing for July 5,6,7,8,12 and August 2,3,4,5 and 22,2022.
July 5, 2022: The prosecution makes fresh application to adjourn the matter citing the fact that they have received new evidence and need time to go through it.
July 6:2022: After failing to adjourn the matter, the DPP files an application to withdraw the matter under section 87(a).
July 7, 2022: The DPP files a fresh charge of theft at a Kiambu court.
