Mwendwa charged afresh in Sh38 million corruption case
Embattled former Football Kenya Federation (FKF) president Nick Mwendwa will be charged afresh with misappropriation of Sh38 million at Kiambu Law Courts.
The new development comes after Judge Esther Maina of the Anti-Corruption High Court Division yesterday dismissed a request by Mwendwa seeking to bar the State from commencing a fresh criminal case against him relating to theft of the colossal sums of the football body.
“After evaluating the submissions and all the documents before me it is clear that the charges facing Mwendwa relate to stealing under the Penal Code for this reason l find that this court has no jurisdiction to hear the case lodged by the applicant. I hereby strike out the application,” Justice Maina said.
The judge however ordered the main petition challenging Mwendwa’s prosecution to be transferred to the Kiambu High Court for the hearing and determination.
This means that the state can now proceed and prefer criminal charges against Mwendwa at Kiambu Law Courts after the FKF boss failed in his attempt to obtain orders suspending his prosecution pending the hearing and determination of the main petition.
The FKF boss who regained control of the federation’s offices at Goal Project in Kasarani, Nairobi on Tuesday, had in July filed an application under certificate of urgency before the High Court in Milimani seeking to stop the Inspector General of police (IG), Directorate of Criminal Investigations (DCI) and Director of Public Prosecutions (DPP) from commencing fresh charges against him in Kiambu Law Courts for the alleged offence stemming from the Report of Football Kenya Federation Inspection Committee dated November 5, 2021, a Press Statement issued by the Cabinet Secretary Sports Amina Mohammed dated November 11, 2021 on the status of FKF.
The lawsuit at the Nairobi High Court came days after Kiambu court on July 7 ordered Mwendwa to appear before Senior Principal Magistrate Kibet Sambu July 15 to plead to the fresh fraud charges.
The summons were issued after the DPP through Joseph Riungu filed a new criminal case against Mwendwa in Kiambu after a Milimani Anti-Corruption Court discharged him of corruption charges under section 87 (a) of the Criminal Procedure Code on July 6.
The corruption court discharged Mwendwa after the DPP failed to avail witnesses and evidence against the former FKF president for two days when the matter had been scheduled for hearing on July 5 and 6.
Following the summons Mwendwa moved hastily and filed a petition challenging the fresh trial saying his rights have been infringed given that the DPP had told anti-graft chief magistrate Esther Nyuttu he had no evidence to tender in court.
Urging Justice Maina to suspend the Kiambu trial, Mwendwa through lawyers Eric Mutua and Charles Njenga said the fresh charges drawn by the DPP under the Penal Code as opposed to those initially filed against him under the Economics and Crimes Act are smacks of malice and bad faith. Lawyer Njenga told the judge, the DPP has changed his tactic and filed a fresh case under the Penal Code where the former FKF boss will now be charged with stealing at the Kiambu Law Courts.
“The move by the DPP to shift the case from courts within Nairobi County to those in Kiambu County amounts to forum shopping,” the judge heard.
Njenga told the judge the law permits cases to be tried by courts within the jurisdiction where the alleged offence was committed.
“The attempt by DPP to charge Mwendwa afresh in a different court is an abuse of prosecution powers intended to keep him out of football management for ulterior motives of Haji and the Sports Ministry,” the judge heard.
The lawyer said the DPP had sought for four months to review the evidence but he took a U-turn on July 7 and filed a fresh charge before Kiambu Law Courts, a day after Nyuttu discharged Mwendwa.
Lawyer Mutua urged the court to take judicial notice of the change of tune by the DPP and arrive at a conclusion that the rights of Mwendwa are being violated.
“This court has no jurisdiction to restrain the DPP from prosecuting Mwendwa in the intended charges under the penal code,” a state prosecutor told the judge
Haji has asked the High Court to dismiss the case by Mwendwa saying he has not laid tangible evidence to show how his rights will be violated if he is called upon to answer the fresh theft charges.
Mwendwa is accused of defrauding FKF over Sh29,502,709 between April 16 and May 31,2021 at an unknown place within the Republic of Kenya.