From evading justice to freedom: Witnesses, including former Energy Minister Kiraitu Murungi, decline to testify

Businessman Yagnesh Devani is now a free man after running from justice for 16 years over the Sh7.6 billion Triton company oil scam. 

Devani was discharged after key witnesses, among them former Energy Minister Kiraitu Murungi, expressed their reluctance to testify in the case. 

Mr Murungi was listed as a crucial witness in the case, according to a ruling rendered by anti-corruption chief magistrate Harrison Barasa on Monday afternoon.

In the decision, Mr Barasa said Director of Public Prosecutions (DPP) Renson Ingonga and the Ethics and Anti-Corruption Commission (EACC) can't be forced to proceed with the case when star witnesses become uncooperative or unwilling to testify.

“This court finds itself in a precarious position as it was ready to proceed with the case. But the DPP has expressed difficulties in leading testimony. Witnesses are not willing to come forth to adduce testimony. He is therefore left with no option but to withdraw the case until such a time when he finds evidence,” Mr Barasa noted.

Public interest case

The DPP, through senior prosecution counsel Elphas Ombati, had on October 9 made an oral application to terminate the case. But the Magistrate observed that the case is of great public interest and directed that an affidavit be filed in court before he could make a determination on the matter. 

When the affidavit was filed, the DPP highlighted a number of reasons why they sought the withdrawal of the case. Among them was the death of some of witnesses, as well as Mr Kiraitu's reluctance to testify. 

The DPP further stated that efforts to trace the main complainant, an Emirates boss, were futile and that the only information available is that the complainant relocated to Singapore. 

The magistrate said that from the affidavit, the EACC was also duly consulted with regard to withdrawal of application.

He also quoted Article 157(8) of the Constitution which provides that the DPP will have regard to the public interest and the core principle in administration of justice. Mr Barasa also emphasised the need to prevent and avoid abuse of the legal process. 

'Preposterous' to proceed with case

He subsequently allowed the application by the DPP to terminate the case under section 87(a) of the Criminal Procedure Code (CPC). Under this section, it means Devani may still be prosecuted in future if sufficient evidence is made available.

"At this juncture, it would be preposterous for this court to proceed. We will be forcing the relevant agencies to proceed with a case when they have made it clear that they don't have sufficient evidence to sustain it," said Mr Barasa.

Devani was arraigned after he was extradited from the United Kingdom where he had sought asylum in 2008.

The Kenyan government had sought his extradition, after which he was brought into the country to face justice on the strength of an international arrest warrant executed with the assistance InterPol.

Devani had fought the extradition but was thwarted by UK courts.

At the time, he alleged that he won’t get justice and that Kenyan prisons are dirty, stinking and uninhabitable.

The charges

Charges filed against Devani and Triton are that between April 23 and December 4, 2008, at Kipevu Oil Storage facility within Mombasa County, he jointly with others stole 318,656 metric tonnes of Jet fuel valued at $365,974, being the property of KCB.

The second charge read that on diverse dates between April 23 and December 4, 2008, he stole 2,000 metric tonnes of Automotive Gas Oil valued at $215,934, also the property of KCB.

The court was told between May 15, 2008 and December 4, 2008, at Kipevu Oil Storage facility, he jointly with others stole 418.134 tonnes of Motor Spirit Premium valued at $438,031, also the property of the bank.

Devani faced alternative counts of fraudulent disposal of the said highly inflammable petroleum products.

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