What you need to know:
- He was kicked out of office with his entire National Executive Committee in November last year by Sports Cabinet Secretary Amina Mohamed when she appointed a Caretaker Committee to run the affairs of the federation.
- Kenya has since been suspended by Fifa for government interference.
The Director of Public Prosecutions (DPP) has withdrawn the case against former Football Kenya Federation (FKF) President Nick Mwendwa in accordance with Section 87 of the Penal Code.
Mwendwa, who was first arrested on November 14 last year before he was released and re-arrested again on charges of fraud, has been battling to clear his name in court through his lawyers Erick Mutua and Charles Njenga.
He was kicked out of office with his entire National Executive Committee in November last year by Sports Cabinet Secretary Amina Mohamed when she appointed a Caretaker Committee to run the affairs of the federation.
Kenya has since been suspended by Fifa for government interference.
Section 87 of the criminal procedure code (cap 75 Laws of Kenya) provides:
“In any trial before a subordinate court any public prosecutor may, with the consent of the court, or on the instructions of the Attorney General, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon such withdrawal –
(a) if it is made before the accused person is called upon to make his defence, he shall be discharged but such discharge of an accused shall not operate as a bar to subsequent proceedings against him on account of the same facts:
(b) if it is made after the accused person is called upon to make his defence, he shall be acquitted”.
On Tuesday, the DPP applied for adjournment of the case arguing that they had no witnesses and wanted to review the evidence, but their application was denied by Milimani Anti-corruption Chief Magistrate Eunice Nyuttu, who directed that they come ready to proceed with the case on Wednesday.
Wednesday's renewed application to adjourn and record statements from intended witnesses was declined by Nyutu who discharged Mwendwa from prosecution.
"I hereby discharge Mwendwa under section 87(a) of the Criminal Procedure Code (CPC) for failure by the DPP to avail evidence before this court," Nyuttu ruled
She put the DPP on the spot for abusing the court process by arresting and producing Mwendwa in court without any evidence.
The court agreed with the defence lawyers Eric Mutua and Charles Njenga that the DPP is using the court as a holding ground while hunting for evidence.
Mwendwa had been out on a cash bail of Sh10 million bond.
According to the charge sheet, between April 16 and May 31, 2021, Mwendwa and others not before court conspired to to defraud the Football Kenya Federation (FKF) Sh29,502,709
He is further accused that on May 15, 2021, he fraudulently acquired public property worth Sh 2.5 million.
Mwendwa is further accused of fraudulent acquisition of property amounting to Sh5 million and another Sh1 million on March 4 and May 6 this year respectively.