Blow to State as court rules cleric case to go ahead
The Director of Public Prosecutions (DPP) has suffered a major blow after a magistrate’s court rejected his application to withdraw a case against a top former cleric.
Former Presbyterian Church of East Africa (PCEA) moderator Rev David Gathanju and ex-employees James Muiruri and Peter Kamuthu are accused of theft of Sh59.9 million belonging to the church.
The trio denied the charges and was each released on Sh3 million bonds. However, the DPP wanted the case withdrawn under Section 84A of the Criminal Penal Code.
Defence objected to the fresh application, arguing it was a clever plot by the government to cover its face because it has been unable to prosecute the matter due to lack of evidence as initially claimed by State Counsel.
Kiambu Senior Principal Magistrate Stella Atambo concurred with the accused, and dismissed the application, terming it as “not merited, off the mark and incompetent.”
“I hence find that the application by the DPP is off the mark. Consequently I find that the Director of Public Prosecutions’ application is not merited, off the mark, incompetent and is hereby dismissed,” Atambo ruled.
New evidence
DPP had on September 9, told the court that it intended to end the case that has been marred by intrigues for the last three years, because they had discovered “new evidence that had not been considered, (and) they intended to consider the matter afresh”.
Through counsel Donnex Ongila, the State told Kiambu Chief Magistrate Patricia Gichohi that he had instructions from the DPP to withdraw the case under Section 84A of the Criminal Penal Code which, however, allows re-arresting of accused persons. Complainant in the case, Secretary-General Rev Peter Kania, has already died but the DPP said the death had nothing to do with their intended withdrawal of the matter.
“I have received instructions to withdraw the case under section 87 A. The complainant is dead but the decision to drop was arrived at before the complainant died,” Ongila told the court.
But the defence, led by lawyers Danstan Omari, John Njuguna and Stanley Kangahi, opposed the application, saying it was meant to further delay the case that has stagnated since the accused took plea on October 17.
Omari argued that the accused persons cannot live their whole lives being suspects, saying for the last three years the complainant had a chance to testify but he did not “and the rulings in the court file attest to the fact that the State was never ready to proceed.”
Several occasions
“State should use the right provisions of the law and make the application afresh or proceed to close the case,” Omari submitted and asked the court to protect the accused persons.
Njuguna told the court that on several occasions, the matter had come up before court but the DPP had never proceeded, a position Atambo agreed with.
“The accused persons took plea on October 18, 2017. That one witness has since testified. The Constitution requires that such cases be heard without undue delay,” she ruled.
Since the time the church lodged the case, the matter has been marred by intrigues, with the former making a series of adjournments while the latter has also been making excuses to have hearings delayed, angering both the court and defense.
From failed attempts by defense to defer plea taking, failed arbitrations, adjournments caused by Prosecution and the church, failed plot to expunge evidence implicating the church and a fresh bid to withdraw it, these factors have formed intrigues that have exposed the state as unready or unwilling to execute it.
Until today, despite the court having on several occasions allocating the case three consecutive hearing days, only Jane Mwihaki, an accountant with the church’s Finance Department has testified in the case sent to mention on September 25.
She gave her evidence on June 2, 2019, almost two years since the case began and her cross-examination was delayed for months by the intrigues that appear to be far from over.
