The prosecution withdrew a graft case against a judiciary staff member after the anti graft agency misplaced a crucial money exhibit.
The accused, Moses Gitonga Muchege, a court clerk at Marimanti Law Court, had been charged with four counts of bribery including two counts of requesting a bribe contrary to Section 6(1)(a) as read with Section 18(1),(2) of the Bribery Act, a count of ‘Agreeing’ to receive a financial advantage contrary to Section 6(1)(9)(b) as read with Section 18(1)(2) of the Bribery Act and a count of receiving a bribe contrary to Section 6(1)(a) as read with Section 18(1),(2) of the same Act.
The hearing of the matter that commenced on June 20, 2022, saw the prosecution call five witnesses in support of its case.
According to the court proceedings, the first prosecution witness gave a testimony where he marked several exhibits, including Sh50,000 in Sh1,000 denominations for identification.
On the July 24, 2023, the fifth prosecution witness was expected to identify the exhibits marked by the first witness; however, the said exhibit was not in court.
The witness was consequently stood down until this crucial exhibit could be availed in court for identification and production.
The prosecution’s case had stalled since the said exhibit had never been made available to the court by the investigation officer.
In a letter dated August 8, 2025 addressed to the Director of Public Prosecution, the Ethics and Anticorruption Commission (EACC) acknowledged that they could not trace the Sh50,000 exhibit evidence and that the integrity and credibility of the chain of custody record was affected.
In that regard, EACC requested the DPP to withdraw the case.
The setback prompted the prosecution to make an application before the court for the withdrawal of the matter under Section 87 (a) of the Criminal Procedure Code (CPC).
If withdrawal under Section 87(a) is made before the accused has been called upon to make his/her defense, it usually results in the accused being discharged but can be charged again for the same offence if the circumstances of withdrawal changes.
If the withdrawal is done after the accused has been called upon to make his/her defense, the accused is acquitted and cannot be recharged for the same offence.
In this matter the accused person is likely to be charged again in the future on account of the same fact should the EACC avail the misplaced exhibits.
In granting the application, Joyce M. Gandani allowed the withdrawal of the case under Section 87(a) of the CPC.
The court noted that the prosecution was hindered by the unavailability of the key exhibit and the compromised chain of custody, which made it impossible to sustain the charges.
It was the opinion of the magistrate that the application for withdrawal before her was done within the interest of justice.
She noted that in the current scenario, it was better to withdraw the matter under section 87(a); should the exhibit resurface, the prosecution will have a chance to charge the accused person afresh.
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