Blow to Haji as Appeals Court suspends orders to prosecute
The Director of Public Prosecutions (DPP) Noordin Haji yesterday suffered a blow after the Court of Appeal suspended a High Court judgement that had granted him sweeping powers over the prosecution of criminal cases.
The Appeals Court brought to a temporary halt a judgement delivered by Justice Anthony Mrima last month that mandated Haji the sole powers to draft and present to court charge sheets.
The ruling was made on a day that an activist, Fredrick Bikeri, filed before the Judicial Service Commission (JSC) a petition for the removal of Justice Mrima for incompetence and breach of the Judicial Code of Conduct.
Bikeri accuses the Judge of being biased in the manner he handled a case where he ruled that only the DPP can draft charge sheets.
The Mrima judgment had escalated the friction between Haji and his Directorate of Criminal Investigations (DCI) counterpart George Kinoti, with the latter asking investigating officers not to record statements with respect to any charges or give evidence in court.
Kinoti had also directed his officers not to write some statements or take fingerprints of accused persons as Haji moved to implement the Mrima judgment with zeal.
The DCI had protested that the ODDP should not be allowed to take over cases from officers who had investigated them to draft charge sheets because the prosecution is not in possession of material facts.
“The prosecutor who prepared, drew, signed and presented the charge will be the one to record a statement in respect to the charges and defend the same under oath during examination-in-chief, cross-examination and re-examination,” Kinoti had directed.
But yesterday, the Appellate Court issued an interim stay of execution of the judgment and restored the mandate to draft charge sheets and subsequent presentation in court to the police.
This means that the court has restored the prosecution of criminal cases back to where it was before May 23 this year when Mrima delivered his judgment.
It essentially means that any charge sheet bearing the stamp or signature of an officer from the ODPP and its logo and Court of Arms will not be honoured by courts.
It is now the courts that will either admit or reject the charge sheet once drawn, signed and presented to the court by a police officer.
The three-judge bench, however, never provided the full judgment, which it promised to deliver on October 7, 2022.
“Pending determination of the application, we hereby grant an interim stay of execution of the judgment of Justice Mrima,” said the Bench.
This means that the drafting of charges will be done by the investigating agencies as it was before.
The ruling stemmed from an application filed by the Attorney General, DCI and the Inspector-General of Police for a stay of the judgment pending the determination of their appeal against the High Court’s judgment.
The case concerned the prosecution of businessman Humphrey Kariuki and eight others over alleged tax evasion of Sh 17 billion.
Although the Court of Appeal stayed the judgment, it said the suspension does not affect the charges that had been levelled against Kariuki and his co-accused persons.
Further, the court said that the suspension does not affect their liberty as they have already been discharged by the trial court.
“We hereby grant an interim stay of execution of the judgment, except in so far as the judgment relates to the charges and liberty of all the accused persons who have already been discharged by the trial court,” said justices Daniel Musinga, Agnes Murgor and Fatuma Sichale.
