High Court faults Attorney General

July 22, 2008 12:00 am

, NAIROBI, July 22 – The High Court has rejected an attempt by the Attorney General  to terminate a criminal case, which has been on trial for more than 15 months before a Kibera Magistrate’s court.

Three High Court judges said Tuesday that the termination order issued by the AG in a case against businessman George Gitau Wainaina was improper and directed the magistrate to proceed with the case saying the AG’s move was oppressive to the accused.

“By seeking to enter a Nolle Prosequi, the Attorney General acted in a manner that is oppressive to the accused herein referred to as the applicant,” the judges ruled.

Wainaina had challenged the termination order arguing that it was entered late, when his case was almost being concluded.

He had been charged with maliciously damaging property worth Sh50, 000 and allegedly stealing Sh150, 000 in April 2002.

The AG wanted to withdraw the case, arguing that it was prosecuted by an incompetent state counsel, which the Defence objected as unconstitutional.

Justices Joseph Nyamu, George Dulu and Benjamin Kubo ruled that the AG made a mistake in his decision to withdraw the case after 29 sittings.

Wainaina argued in his application, that he was likely to suffer oppression should the case be terminated, since it was possible that the AG would institute fresh charges against him.

This, in his apparent apprehension, would pave way to a fresh trial in addition to what he had endured over six years to an offence he pleaded “not guilty” .

The three judges concurred that the trial violated the rights of the accused.

“In our view, the Attorney General’s move is out of tune with the expeditious trial of a case,” the judges ruled.

The judges said the High Court was inclined to inquiring the impropriety of the termination order as expressed by Wainaina.

The stern bench noted that the admission of the termination order was tantamount to aiding in oppression and termed the AG’s move as ‘a face-saving device’.

“We have no hesitation in finding that this action by the Attorney General was against public policy and so the Nolle Prosequi should be rejected,” they ruled.

“We therefore direct that another but a appropriate way of handling the case be adopted.”


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