The High Court has dismissed objection by family of murdered Dutch tycoon Tob Cohen against prosecutors’ decision to withdraw charges facing his widow Sarah Wairimu Kamotho and businessman Peter Karanja.
Justice Daniel Ogembo has said the family’s objections lack merit and he was not convinced by their argument that the Director of Public Prosecutions acted in bad faith while deciding to withdraw the charges.
“This court is not convinced by victims that DPP exercised his powers in bad faith and the objections raised do not have merit and are dismissed. I allow the “Nolle prosequi” (not to wish to prosecute). The accused persons are accordingly discharged,” said the judge.
The ruling paves way for registration of a judicial inquest case at the chief magistrate’s court to establish the cause and circumstances leading to the death of the tycoon, whose body was discovered in an underground water tank at his home compound in Kitisuru, Spring Valley, Nairobi in September 2019.
Cohen, 71, had been reported missing on July 19, 2019 but Directorate of Criminal Investigation detectives failed to locate him until the body was discovered in the tank on September 13, 2019 by homicide detectives. This led to the arrest of the widow and the businessman.
But the widow has since stated that she was fixed in the murder and two politicians were involved the disappearance and death of her husband. She alleges that police investigators were used to cover-up and protect the alleged killers.
Though she has not named the said politicians, who she describes as "well-known and closely associated with the former government", Ms Wairimu says they wanted to take over her husband's property and disinherit her. She is pushing for fresh investigations and grilling of former DCI boss George Kinoti.
The court noted yesterday that the widow and the businessman have been discharged but not acquitted and that they may be charged should the inquest find their culpability in Cohen’s death.
In the ruling, the judge also refrained from dealing with Ms Wairimu’s request for an order directing the State security agencies to release the matrimonial home to her together with her car and a pet dog.
The home has been under the control of police since July 2019 over allegation that it is a scene of crime.
“On return of property held by police, they could be part of dispute pending in other courts,” said Justice Ogembo while refraining himself from dealing with the issue.
Ms Kamotho together with Mr Karanja were charged with the tycoon’s murder in October 2019. They denied the offence.
However the trial failed to commence after investigators failed to supply the defence lawyers with the evidence.
“It is not denied by the DPP and the victim that defence has never been supplied with documentary evidence held by the prosecution. This has impended the commencement of the trial,” said Justice Ogembo.
The court stated that although the DPP does not exercise absolute and unfettered authority in discharge of his duties, the court was satisfied with the withdrawal.
Cohen’s family had opposed the withdrawal on grounds that the DPP failed to give any written reasons and that their rights under Victims Act 2014 had been violated. Their objection was based on section 23(1) of the Act.
But Justice Ogembo stated that the said legal provision deals with restitution and compensation of victims not provision of information.
He said the correct provision was section 19 of the Act, which deals with right to the information.
“However, it does not direct in what format the information is to be given or period of time within which the information should be provided. It does not declare any consequences of failure to avail the information in time to the victims,” said Justice Ogembo.
He emphasized that the independence of the DPP is guaranteed under 157(10) of the Constitution and the DPP does not require permission or authority of anybody in making a decision.
Article 157(10) says “the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority”.
He said the Constitution only requires the DPP to “have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process”.
In ordering for a public inquest into the murder, the DPP said there were inconsistencies by the police investigators and that an inquest will allow members of the public to provide any useful information on the murder to the authorities, as is required by the law.
Mr Haji said the alleged forgery of the transfer of shares belonging to Cohen relating to Tobs Limited has not been exhausted by the police investigators.
Another reason the DPP sought Ms Wairimu and Mr Karanja set free and the matter referred to inquest is the failure by the investigating team to cover 35 areas of investigation that he had directed them to address.
Statements recorded by the police indicated that several police officers in civilian clothes visited the late tycoon's compound but their identities as well as their purpose for visiting have never been disclosed.
The DPP added that the document examiners, who authored reports on the final wills of Cohen and the forgery allegations of the transfer of shares, gave conflicting reports and findings.
The DPP said they need to record statements and unveil their respective reports explaining the disparities.
Another basis of the DPP’s decision is the withdrawal of an affidavit by senior investigator John Gachomo of DCI headquarters to recant his evidence against a judge who had been implicated in the case. The recanting raised questions on the integrity of investigations.
“Telephone data of all the Police officers and any other persons of interest who may have come into contact with the alleged suspect at the time remains incomplete, yet such evidence may shed light into the planning and execution of the murder," stated the DPP through his assistant Jacinta Nyamosi.