Mimani Anti-Corruption Chief Magistrate Court was on Thursday, November 9, 2024, morning treated to a dramatic situation after the Director of Public Prosecution (DPP) failed to show up in court for the second time for the hearing of the Ksh357 million graft case against former Nairobi Governor Mike Sonko and 17 others.

When the matter was called out for further hearing before Magistrate Eunice Nyutu, the prosecuting counsel in the case was said to be absent without an explanation from the office of the DPP.

The shocking move by the prosecution to skip court proceedings on Wednesday and today is alleged to be in protest by the Magistrate’s decision on Tuesday, November 7, 2023, to decline to grant an adjournment of the hearing of the case.

It is said that the DPP had sought to have the matter postponed the hearing of the main case pending the determination of their application dated November 3, 2023, in which they are seeking to withdraw the case against four accused persons namely Hardy Enterprises Limited, Toddy civil engineering limited, Antony Mwaura and Rose Njeri.

Declining the postponement by the prosecution, the magistrate stated that whereas the application is in favour of four accused persons out of 17 accused persons, the application for adjournment was not justified to postpone the trial for the rest of the 13 accused persons who are also entitled to have their matter proceed expeditiously.

The actions by the prosecution to skip the proceedings in the case on Wednesday and today without offering any explanation shocked the defence team prompting them to seek to be freed by the court for want of prosecution.

The defence lawyers led by Assa Nyakunyi urged the court to terminate the case against Sonko and his co-accused persons under 204 of the Criminal Procedure Code (CPC) for the failure of the complainant (the DPP) to appear in court.

“On November 8, 2023, the prosecuting counsel went missing without a word and today November 9, 2023, the prosecutor has gone missing without a word from the Office of the DPP. Since the complainant is absent this means there is no case against our client Sonko we urge you to discharge the accused herein,” the lawyer told the court.

However, in a brief ruling magistrate Nyutu rejected the application to terminate the case saying it was a matter of public interest.

She however took issue with the failure of the prosecutor to skip court proceedings for two days consecutively without giving an explanation whatsoever thereby holding the court and other parties at ramson.

“The conduct of the DPP is wanting. It is unfortunate that the DPP has chosen to get an adjournment through cheer arm twisting of the court,” the magistrate said.

“As the matter stands the prosecuting counsel and the DPP Renson Ingonga have absconded, discharging their duty. Through their actions they have held the court at ransom making it impossible for the court to discharge its mandate under Articles 159 and 50 of the constitution which requires it to do justice to all and to do it expeditiously,” Nyutu added.

According to the magistrate the DPP has abandoned his prosecutorial duty and instead usurped the role of the court to manage the trial process in the corruption case.

“He (Ingonga) is now plotting to direct the court as to how and when to proceed with the case. This court has constitutional protection under Article 160 of the constitution which states that in the exercise of judicial authority, the judiciary as constituted under Article 161 shall be subject to the Constitution and the law and shall not be subject to the control or direction of any other person or authority,” she ruled

Nyutu also said that the DPP has no power whatsoever to control the proceedings of the court in the case against Sonko and his co-accused person.

The magistrate stated that she had taken notice that the prosecutor is the complainant in all criminal cases and when the prosecutor fails to show up there is simply no case against the accused person.

“However this court takes notice that the matter before it is a public interest case and the sins of a prosecutor or the DPP can not be visited on the public to allow interference of justice. It is for this reason I decline to dismiss the case for want of prosecution and hereby declare the conduct of the prosecuting counsel and the DPP is contemptuous,” Nyutu said.

She however adjourned the case on condition that the ruling be placed before the National Council for Administration of Justice for dialogue on the conduct of the prosecution in the case and other cases.

Nyutu also ordered that the ruling be placed before DPP Ingonga for action.

In the case, Sonko alongside 16 others, among them private liability companies, are accused of embezzling public funds to the tune of Ksh357 million from Nairobi County.

It is alleged that Sonko on December 17 last year at Equity Bank Limited, received Ksh3 million from Toddy Civil Engineering Limited, property belonging to Nairobi county government whilst knowing the property formed part of proceeds of crime.