Football Kenya Federation (FKF) president Nick Mwendwa on Wednesday got a major reprieve after the court quashed the Sh38m theft case filed against him by the Director of Public Prosecutions (DPP) Noordin Haji.
In a ruling delivered by Kiambu Senior Principal Magistrate Wilson Rading invalidated the decision by the DPP to recommend the prosecution of Mwendwa with criminal charges.
While quashing the charges, the Magistrate ruled the charges as framed by the prosecution were malicious, unlawful and unconstitutional. His sentiments were similar to those of previous magistrates Wandia Nyamu and Eunice Nyutu who initially handled the case and found nothing substantial.
“After considering the evidence presented by Mwendwa’s defence lawyers, l find that they made a case to warrant this court’s intervention to protect the abuse of the court process,” ruled Rading.
Rading said the charges filed against Mwendwa by the DPP resulted from a probe by a committee appointed by former Sports CS Amina Mohammed which were inconclusive.
“This court hereby issues orders to the effect that the charge sheet dated July 7, 2022 and or any other charge sheet prepared and registered in this court by the DPP and or his prosecutors against the accused person (Mwendwa) after July 6, 2022 be and hereby struck out for being defective unlawful, unconstitutional and for being an abuse of the court process and criminal justice system,” Rading ordered.
He, however, freed Mwendwa and ordered that the state should not apprehend and charge him based on the same findings of the probe team.
“The court orders that no other charges and/or any other criminal process premised upon the preliminary report of Football Kenya Federation (FKF) Inspection Committee dated November 5, 2021 including summoning of the accused person to take a plea on any charge shall be registered in it,” ruled the magistrate.
The fresh charges being preferred against Mwendwa stemming from the Report of Football Kenya Federation Inspection Committee dated November 5, 2021, a Press Statement issued by the Cabinet Secretary Sports Amina Mohammed dated November 11, 2021 on the status of FKF.
The decision by the court comes after Mwendwa’s lawyers Eric Mutua, Charles Njenga and Victor Omwebu asked the court to terminate the criminal case as it was an affront to Mwendwa’s fundamental and constitutional rights.
Mwendwa had opposed the fresh trial saying his rights have been infringed given that the DPP had told anti-graft chief magistrate Esther Nyuttu he had no evidence to tender in court.
Nyuttu discharged Mwendwa on July 6, 2022 under Section 87 (a) of the Criminal Procedure Code (CPC) after the DPP failed to avail witnesses in court in the case.
While seeking to be freed, Mwenda informed the magistrate that the facts and history of the case clearly demonstrated that there have been grave violations of the criminal justice system from November 12, 2021 including the investigations, arrest, incarcerations and blatant abuse of the court process.
“That it cannot be denied that there is an element of bad faith on the part of the prosecution in preferring the impugned charges against the accused person,” lawyer Mutua told Rading.
The DPP had opposed the application by Mwendwa on grounds that the charges were properly filed in court and that the court lacked the juridiction to hear and determine the request by Mwendwa.
In the case, Mwendwa was accused of defrauding Football Kenya Federation (FKF) Sh 29,502,709 between April 16 and May 31, 2021 at an unknown place within the republic of Kenya.
He is further accused that on May 15,2021 at unknown place within the republic of Kenya jointly with others not before court he fraudulently acquired public property to wit Sh 2.5 million the property of it f Football Kenya Federation (FKF).
Mwendwa was further accused of fraudulent acquisition of property amounting to Sh 5 million and another Sh 1 million on March 4 and May 6, 2021 respectively.
