The High Court ordered a retrial in the corruption case against former Nairobi Governor Mike Sonko, overturning the trial court’s decision to acquit him.
While setting aside trial magistrate Douglas Ogoti’s ruling, High Court judge Justice Nixon Sifuna held that the trial magistrate fell into grave error by failing to consider evidence given in each count.
Sifuna said that the amended charge sheet had replaced and superseded the original, rendering it null and void.
Judge Sifuna said Magistrate Ogoti relied on the original charge sheet in his ruling, an error he equated to “using a wrong marking scheme to mark an examination.”
Sonko was initially charged with an original charge sheet filed on January 27, 2020 with eight counts and a subsequent amended charge sheet filed on September 7, 2020 with 13 counts.
The High Court directed that the case be heard afresh by a different magistrate, beginning with a ruling under Section 210 of the Criminal Procedure Code on whether a prima facie case has been established.
The new magistrate has been given 30 days to make this determination based on the evidence presented so far.
“In the end I find that magistrate in arriving at the impugned ruling fell into error this appeal succeeds and is therefore allowed,” ruled Sifuna.
“The ruling delivered by Magistrate Ogoti is hereby set aside Consequently the trial court acquittal of respondents is hereby set aside. This case shall be retried by a magistrate other than trial magistrate Ogoti who shall start by making a fresh ruling under section 210 of the CPC on the basis of the evidence so far adduced. The said ruling be made within 30 days.”
Sifuna criticized the trial court for failing to assess each count independently, instead issuing a generalized ruling.
He also dismissed the trial court’s ruling that the charges were defective, saying that the courts ought to determine cases on merit and substantive justice and not on procedural technicalities.
While acquitting Sonko and his co accused, trial magistrate Douglas Ogoti said the charge sheet was defective and from the 19 witnesses who testified, the evidence was not sufficient to place Sonko in his defence.
“The accused persons, therefore, have no case to answer,” he said.
Sonko was accused of embezzling funds by awarding dubious contracts. The money was allegedly wired back to his personal accounts on different dates.
The charges against them included money laundering, conflict of interest, abuse of office, acquisition of public funds and conspiracy to commit an economic crime.
Sonko was accused of corruptly receiving over Sh25 million through proxies.
One of the tenders was for the supply and implementation of an electronic revenue collection and payment system.
They allegedly committed the offence between July 1, 2018, and January 31, 2019.
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