No malice in Mwendwa's fresh charges, DPP insists
Former Football Kenya Federation President Nick Mwendwa (left) attends the Football Kenya Federation Premier League match between Kariobangi Sharks and Kenya Police at Kasarani Annex on December 8, 2021.
What you need to know:
- 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 Haji
- Mwendwa has accused DPP of forum shopping for a court to try the fresh charges after he told Nyuttu he has no evidence to lead against Mwendwa
- Through Nanjaya, the DPP has stated he is not being malicious by filing the fresh case against Mwendwa who was discharged 15 days ago by anti-graft court chief magistrate Esther Nyuttu
The director of public prosecutions (DPP) Noordin Haji has asked the High Court to dismiss a case by embattled Football Kenya Federation (FKF) President Nick Mwendwa seeking to block his fresh trial 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 Haji.
“Allegations by Mwendwa that he has been locked out of FKF after (Sports CS Amina) Mohammed appointed a caretaker committee to runs its affairs amounts to a conflict of interests on the part of DPP in having a brother Hassan Haji as a member of the committee does not have a legal basis as the charges facing the former FKF president are not in any way related to such appointment,” a prosecuting counsel Thelma Nanjaya states in an affidavit in response to Mwendwa’s petition.
Haji has denied he is forum shopping for a magistrate to try Mwendwa in the new charges which hinged on the Penal Code while he had been discharged by the anti-corruption court which requires strict proof of allegations against suspects.
Mwendwa has accused DPP of forum shopping for a court to try the fresh charges after he told Nyuttu he has no evidence to lead against Mwendwa.
Through Nanjaya, the DPP has stated he is not being malicious by filing the fresh case against Mwendwa who was discharged 15 days ago by anti-graft court chief magistrate Esther Nyuttu under Section 87 (a) of the criminal procedure code (CPC).
He maintains the fresh charge arises from fresh evidence gathered by the prosecution.
In evidence filed before Justice Esther Maina, who has temporarily stopped the fresh trial of Mwendwa, the DPP says the troubled FKF president has failed to illustrate how his rights have been violated through the institution of the new charges under the Penal Code.
“There is no evidence of malice, harassment, intimidation, unlawful actions, excess or want of authority or even manipulation of the court process so as to seriously deprecate the likelihood that the the petitioner (Mwendwa) might not get a fair trial as provided under the Constitution to warrant the High Court to intervene with the criminal process before the subordinate court,” Nanjaya states in an affidavit answering Mwendwa’s allegations that his rights have been violated by the DPP.
Justice Maina suspended the fresh trial of Mwendwa pending the outcome of a petition he has filed challenging the fresh bid.
Justice Maina was told by advocates Eric Mutua and Charles Njenga for Mwendwa that he (Mwendwa) “has knowledged that the DPP has conflict of interest in the case since after the disbanding of FKF,CS Sports appointed a caretaker committee to manage it with a budget of Sh800 million.Among the members of the said committee is a brother to the DPP, one Hassan Haji.”
The DPP says Mwendwa has not demonstrated how his pleading to the new charges at the Kiambu Law Courts will affect the outcome of his High Court case which he lodged to quash the decision to charge him before in-depth investigations were conducted to determine the alleged loss of colossal amounts from the football body by an Inspection committee in October 2021.
“The decision to charge Mwendwa was informed by the sufficiency of evidence on record and the public interest and not any other consideration,” states Nanjaya.
The prosecutor has prayed, Justice Maina to allow Mwendwa to proceed with plea taking before the Kiambu Court “which is equipped with the quality and sufficiency of evidence gathered in support of the charges preferred against the petitioner.”
Mwendwa through Mutua and Njenga had obtained interim orders barring Kiambu Law Courts from trying him pending determination of the case he has filed at the superior court.
The embattled football boss was discharged after DPP told Nyuttu he had no evidence to lead in the Sh38million graft case against him.
Freeing him, 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 is expected to appear in court for allegedly stealing money from FKF while initially he was facing graft charges.
Justice Maina has directed lawyers Mutua and Njenga and Nanjanya to file written submissions and appear before her on July 28, 2022 for hearing and fixing of a day for the judgement.
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.
