Nick Mwendwa in fresh attempt to forestall case

Nick Mwendwa

Football Kenya Federation president Nick Mwendwa speaking at Kandanda House, Kasarani in Nairobi on September 20, 2022.

Photo credit: Ruth Arege | Nation Media Group

What you need to know:

  • Mwendwa who is scheduled to appear before the Chief Magistrate’s Court at the county court on Monday to plead to the fresh case, has asked the Hight Court sitting in Kiambu to protect his fundamental rights to unfair administrative action.

In a last minute-strike, embattled Football Kenya Federation (FKF) president Nick Mwendwa has moved to forestall the new Sh38 million theft case which the Director of Public Prosecution (DPP) has filed at the Kiambu Law Courts.

Mwendwa who is scheduled to appear before the Chief Magistrate’s Court at the county court on Monday to plead to the fresh case, has asked the Hight Court sitting in Kiambu to protect his fundamental rights to unfair administrative action.

Through lawyers Eric Mutua and Charles Njenga, Mwendwa has asked the superior court to intervene and curtail the DPP from abusing the court process through alleged “forum shopping”.

“I have already suffered and I will continue to suffer irreparable prejudice, loss and damage should this Honourable Court not intervene to remedy the infractions of law being meted against me,” Mwendwa states in an affidavit.

In effect, Mwendwa is asking the High Court to reinstate earlier orders granted by Justice Esther Maina stopping the DPP from arresting him and charging him with theft of Sh38 million from FKF’s coffers.

Mwendwa’s lawyers have argued that the DPP applied to withdraw the case against Mwendwa under Section 87(a) of the Criminal Procedure Code (CPC) for lack of evidence.

Mwendwa was discharged is now a freeman.

The lawyers want Kiambu High to issue a conservatory order restraining the Director of Criminal Investigation, the DPP and the Inspector General of Police from arresting, interrogating, harassing, recommending prosecution or charging their client in any court of law within Kenya.

Mwendwa the alleged charges are based on the preliminary report of FKF dated November 5 2021, a press statement by the CS Mohamed of November 11,2021 and the Gazette Notice No.12374 dated November 12,2021.

Mutua therefore asked the court to take judicial notice of the aborted moves to prosecute him since November 11 2021 when he (DPP) had not completed investigating the alleged misuse of FKF.

Mutua and Njenga have presented before the Kiambu High Court a detailed graphical and chronological history of the case since Sports CS Amina Mohamed disbanded FKF committee members and appointed a caretaker committee to run football activities in Kenya.

Last week High Court Judge Esther Maina, who handles anti-corruption related cases declined to bar the DPP from prosecuting Mwendwa in the alleged theft case in Kiambu Law Courts.

Justice Maina said the case her court which deals with corruption related cases lacks jurisdiction to give directions about the intended filing of a theft case at the Kiambu chief magistrates courts.

The judge said her court lacks authority to deal with the matter. She said her court only handles disputes related to corruption. She added that the criminal charges facing Mr Mwendwa relate to "stealing".

"The charges facing Mr Mwendwa relate to stealing under the Criminal Procedure Code (CPC). For this reason, l find that based on this court's mandate and the practice directions issued by the Chief Justice, it has no jurisdiction to hear the application lodged by the applicant. I hereby strike out the application," ruled Justice Maina.

Discharging Mwendwa in the graft case Ms Nyutu stated,“In the absence of witnesses and any proof of having bonded witnesses…in the absence of interim draft amended charges, I find this utter disregard of the courts order amounts to contempt of court.”

Ms Nyuttu added :“ It is evident that the prosecution is ill prepared to proceed as investigations appear not to have been concluded.. the prosecution appeared on the hearing date purporting to have acquired fresh evidence and casually sought to vacate all hearing dates.”

After disbanding of the FKF ,the Sports CS has appointed a transition committee under the chairmanship of General (rtd) Maurice Oyugi.

Mutua told the Sunday Sport, Kiambu High Court will give direction early Monday at to whether the DPP will be allowed to file the fresh charges against Mwendwa or not.