What you need to know:
- Justice Maina extended orders barring the DPP from filing the fresh charges against Mwendwa until September 21 when she will deliver a judgement on the legality of the fresh charges.
The Director of Public Prosecutions (DPP) Noordin Haji will know in 56 days whether to prosecute the embattled former FKF President Nick Mwendwa or not over misappropriation of funds in the football body.
Lady Justice Esther Maina fixed September 21 as the day of ruling on whether the fresh charges filed against Mwendwa are illegal and unconstitutional or not.
Justice Maina was informed by lawyers Eric Mutua and Charles Njenga that 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 malicious and in bad faith.
“The Anti-Corruption Court Milimani discharged Mwendwa’s first graft case when the DPP failed to lead evidence,” Njenga told the judge.
Njenga told the judge, the DPP has changed his tact 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.
Mwendwa was charged on November 2021 before chief magistrate Esther Nyuttu at the Milimani Anti-Corruption Court.
Njenga urged Justice Maina to restrain the DPP from commencing fresh charges in a different court.
“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 court 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,” Njenga added.
Mutua added that the shifting of the case from Nairobi to Kiambu is an abuse of court process on the part of the DPP.
The lawyer said the DPP had sought for four months to review the evidence but he took a U-turn on July 7and filed a fresh charge before Kiambu, a day after Nyuttu discharged Mwendwa.
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.
Mutua said the DPP has interest in the running of football since Sports CS Amina Mohamed appointed, Hassan Haji, a brother of the DPP as one of the members of the Transition Committee appointed to manage football activities after disbandment of the FKF team.
But the DPP defended his move saying that he retains powers to prosecute all offences under the Constitution.
“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.
The fresh case will be tried at the Kiambu Law Courts.
At the same time, Haji has clarified there is no conflict of interest in charging Mwendwa who has been locked out of FKF which is being managed by a committee whose membership comprise among others, his brother Hassan.
The former football boss was discharged after DPP told Nyuttu he had no evidence to lead in the Sh38million graft case against him.
Freeing Mwendwa, Nyuttu said: “In the absence of witnesses and any proof having bonded them…in the absence of reasonable explanation... in the absence of interim draft charges …I find this utter disregard of the courts’ order amounts to contempt…its evident that the prosecution is ill prepared to proceed as investigations appear not to have been concluded.”
Mwendwa has named the DPP, the Director of Criminal Investigations (DCI), the Inspector General of Police (IG) and the Attorney General as respondents in his petition challenging the fresh bid to charge him.
Justice Maina extended orders barring the DPP from filing the fresh charges against Mwendwa until September 21 when she will deliver a judgement on the legality of the fresh charges.