Reprieve for Mwendwa as court stops trial of criminal charges

The embattled Football Kenya Federation (FKF) President Nick Mwendwa will know whether he will roar back into the leadership of the football body after the High Court determines the legality of the Sh8.5million theft case preferred against him by the Director of Public Prosecutions.

Staying the trial before Kiambu Senior Resident Magistrate Wilson Rading, Justice Mary Kasango said it would be prejudicial to try the football boss when there is a pending matter in the  High Court.

Now Rading has been restrained from proceeding to determine whether Mwendwa can answer charges of theft of Sh8.5million and conspiracy to defraud FKF Sh29.5million.

Rading had postponed the ruling four times, until on Wednesday when he informed defence lawyers Eric Mutua, Charles Njenga and Victor Omwebu that the High Court has instructed him not to proceed with the case.

Rading disclosed that he received a memo from a judge on November 3 communicating the existence of a petition by Mwendwa challenging the fresh trial.

“This court is apprehensive that the decision of the High Court may have a direct effect on the matter before it and in the interest justice and in avoidance of two conflicting decisions, it is imperative that this court defers its ruling awaiting the outcome of the decision of the High Court,” Rading ruled.

The magistrate said public interest demands judicial time be reserved for the purpose it was called upon to discharge.

“The seat of justice is a hallowed place and ought to be reserved for the administration of justice. It is against public interest to lose such precious judicial time especially in situation similar to the one faced by court,” Rading.

The magistrate went on to rule: “In view of the above and considering this court is bound by the decision of the superior court, this court takes exceptional circumstances and defers its ruling pending determination of the petition in the High Court.”

Justice Kasango will hear the petition on December 6.

Mwendwa's lawyers Mutua, Njenga and Omwebu had filed two applications one before Rading and another before Justice Kasango, all seeking to bar DPP from prosecuting Mwendwa afresh saying it would be an affront to his constitutional and fundamental rights.

Mutua argued Mwendwa had been discharged by the Anti-Corruption Court following failure by the DPP to avail evidence.

Anti-graft court Chief Magistrate Eunice Nyuttu discharged him under Section 87(a) of the Criminal Procedure Code (CPC).

Under this section ,one may be re-arrested and charged again.

After the discharge, DPP filed a fresh case before the Kiambu Court.

The DPP through Kiambu County Prosecutor Everlyne Onunga presented a raft of evidence in support of the fresh case filed against Mwendwa.

Onunga told Rading there is enough evidence to support and prove the theft charges against the football boss.

In the first theft charge Mwendwa is alleged to have stolen KSh2,500,000 on May 15, 2021 being the property of FKF when he was the president of the federation.

The second charge states, on March 4 ,2021 Mwendwa stole Sh5million the property of FKF when he served as its president.

The third indictment is that of stealing Sh1million on May 6, 2021 while the last count is of conspiring to defraud FKF Sh29,502,709 jointly with others not before the court.

Onunga told Rading that the decision to charge Mwendwa was “informed by the sufficiency of evidence or record and the public interest and not any other consideration.”

Onunga, appearing alongside Terry Kehoro, handed to the court and the defence lawyers 71 documents containing evidence in support of the four charges.

The documentary evidence includes bank transactions from Kenya Commercial Bank (KCB), NCBA, NIC Bank including the approved budget for FKF for three years.

“FKF approved budgets for the years 2018, 2019 and 2020 was Sh797,259,232 Sh1,241,991,520 and Sh1,004,565,145 respectively,” the inspection report of the FKF committee appointed by former Sports CS Amina Mohamed shows.

Onunga urged Rading to dismiss in its entirety the application by Mwendwa seeking to block the DPP from prosecuting him saying the case has not met the threshold.

“The stay orders sought by Mwendwa are not tenable as he has not met the threshold for such orders and the application is wrongly before the court,” prosecutor Thelma Nanjaya said in an affidavit in support of the DPP's plea to dismiss the case by Mwendwa to prohibit his trial over the alleged theft.  

Onunga told Rading that the Anti-Corruption High Court Judge Esther Maina declined to restrain the Kiambu trial.

“The DPP prays this matter proceeds for plea taking before the trial court which is well equipped to deal with the quality and sufficiency of evidence gathered in support of the charges preferred against Mwendwa,” Onunga said.

This plea taking ruling has been adjourned indefinitely.

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