DPP gets more time to appeal Sonko acquital in Sh25m graft case
Former Nairobi Governor Mike Sonko during a past appearance in a Nairobi court.
A judge has granted the Director of Public Prosecutions (DPP) 30 days to file his main appeal against a magistrate's ruling that acquitted former Nairobi Governor Mike Sonko and businessman Antony Otieno Ombok alias Jamal trading ROG Security Ltd in Sh25 million fraud case.
Anti-corruption court Judge Esther Maina on Monday directed the DPP to lodge the entire record of appeal within the said period so that the case can settle down to hearing.
The directive came after the case prosecutors, Judy Thongori and James Kihara, sought to be granted more time to file the record of appeal.
They said the same had been delayed by getting the typed proceedings of the magistrate court. Mr Sonko's lawyers did not oppose the request.
The court heard that the lower court proceedings were lengthy since the case took over four years.
In the appeal, the DPP is challenging the lower court's decision to acquit Mr Sonko, Mr Ombok and ROG Security ltd over claims that the charge sheet was defective.
DPP argues that the trial court relied on technicalities to acquit Mr Sonko and other accused persons instead of delivering substantive justice. Mr Sonko and Mr Ombok are yet file their response to the appeal.
"The trial magistrate erred in law and fact by disregarding the evidence on record and failing to make a finding whether or not the prosecution had established a prima facie case against the respondents,” said the DPP.
The acquittal ruling was delivered by Chief Magistrate Douglas Ogoti on December 21, 2022.
Mr Sonko was facing the charges together with Anthony Otieno Ombok alias Jamal and ROG Security Ltd but were acquitted by the trial magistrate because the charge sheet presented was defective.
The former city governor was accused of embezzling funds from the county government by awarding dubious contracts. The money was allegedly wired back to his accounts and deposited in various parts of the country, on different dates.
The charges against them included money laundering, conflict of interest, abuse of office, acquisition of public funds and conspiracy to commit an economic crime.
Mr Sonko was accused of corruptly receiving more than Sh25 million, through proxies.
In the appeal, the DPP says that the trial magistrate was wrong by holding that the charge sheet was defective yet he amended it and the accused persons pleaded afresh on September 7, 2020.
The DPP wants the High Court to quash the lower court decision and find that Mr Sonko and his co-accused have a case to answer and have them placed on their defence.
In addition, the DPP says that he was dissatisfied with the ruling and the resultant acquittal as the trial court relied on extraneous reasons as a basis for acquitting the accused persons.
Misdirected himself
According to the DPP, the Magistrate grossly misdirected himself by relying on an old charge sheet filed in court on January 27, 2020 in making a finding that the charges were defective and disregarded the substituted charge sheet filed in court on September 7, 2020.
“The trial Magistrate erred in fact and law by misapplying the law by holding that there was a defective charge sheet whilst he had already admitted the amended charge sheet filed in court on September 7, 2020 and did not reject the said charge sheet under section 89(5) of the Criminal Procedure Code (CPC),” states the DPP in his appeal papers.
The DPP says the trial court disregarded the evidence on record and failed to make a finding whether or not the prosecution had established a "prima facie" case against the suspects.
Magistrate Ogoti also failed to consider the submission and authorities of ODPP and placed heavy premium on the suspects’ submissions leading to their acquittal, claims the DPP.
“The trial Magistrate erred in law and fact by failing to analyze the evidence adduced by 19 prosecution witnesses thereby arriving at an erroneous finding, and failed to deliver substantive justice and relied on technicalities in acquitting the accused persons,” the DPP says.
"The prosecution wants the appeal be allowed and the acquittal to be quashed in its entirety and the court to return a finding that the prosecution had made out a prima facie case requiring the accused persons to be placed on their defence with respect to all the counts of graft," he seeks.
Prosecution further faults the Magistrate for failing to consider the provisions of section 214 of the Criminal Procedure Code (CPC), which allows for amendment or substitution of charge sheet at any stage of a trial before the close of the case for the prosecution.
Further that the Magistrate failed to make a finding on each and every count as per the amended charge sheet.
The ruling did not also comply with section 169 of the CPC, he adds.
Section 169 of the CPC requires that every judgement should contain the point or points for determination, the decision and the reasons for the decision.
