The High Court has upheld a decision by prosecutors to withdraw criminal charges against Nakuru Town MP David Gikaria, activist Boniface Mwangi and three others.
They had been charged with malicious damage to private property alleged to be on grabbed public school land.
Justice Joel Ngugi dismissed a request by Ense Ltd for judicial review and the quashing of a magistrate’s ruling that terminated the trial. Justice Ngugi said reviewing decisions by the Director of Public Prosecutions would be to undermine his constitutionally protected independence.
Mr Gikaria and activists Boniface Mwangi, Elijah Kinyanjui, Moses Gichangi and Francis Kahero were charged with wilful and unlawful demolition of a perimeter wall valued at Sh7 million, the property of Ense, on May 19, 2016 in Naka estate, Nakuru town.
They were part of a mob that descended on the fence, claiming that it had been used to illegally carve out public land meant for Naka Primary School. They claimed they wanted to prevent Ense from grabbing the land.
In its application for judicial review, Ense argued that immediately after the criminal charges were brought, Mr Gikaria and his co-accused began interfering with the prosecution.
This culminated in the files being called for review by the DPP in Nairobi. The DPP confirmed that there was sufficient evidence to support the charges.
In a September 29, 2016 letter, the DPP directed prosecutors to proceed based on the evidence at the time that showed Ense was the bona fide owner of the land and that the accused had acted maliciously when they “invaded” the property.
But about a year later, before the criminal trial could conclude, the DPP wrote a letter on January 9, 2018 reviewing the decision to charge and discontinued the trial.
The letter said that new information had come to the attention of the DPP that prompted prosecutors to withdraw the criminal cases "pending the outcome of the comprehensive investigations by the DCI and EACC on possible commission of offences by various persons”.
The new information was gleaned from the records of the National Assembly’s Committee on Land following a petition and a report tabled in the House.
The report indicates that the land in question was dealt with by the National Land Commission, which issued two conflicting decisions.
The committee proposed that the Ethics and Anti-Corruption Commission, the Directorate of Criminal Investigations and the DPP undertake an audit and prosecute persons who committed transactions regarding the land.
In particular, the committee urged that former trustees of Naka Primary School - Joshua Kiptoo Toroitich, Harun Chelanga and Stephen Kibowen, who sold the land – be investigated and prosecuted.
Defending his decision to withdraw the charges, the DPP informed the court that per the Kenya Gazette of July 2017, the land in question is vacant and belongs to a public school.
The DPP said it was imperative to establish the status of the property before further court actions are undertaken.
The court heard that the Nakuru office of the DCI was already looking into the matter.
Ense complained that it was not consulted before the decision to discontinue the criminal trial was made.
But Justice Ngugi ruled that while it would be prudent for the DPP to hear an alleged victim’s representations before withdrawing a case, there is no requirement that such consent be sought before the case is withdrawn.