Director of Public Prosecutions (DPP) Renson Ingonga has applied to withdraw the Sh122 million Government Advertising Agency (GAA) fraud case against Kakamega Deputy Governor Ayub Savula and his two wives following the death of a key witness.
Also to be let off the hook is former GAA director Dennis Chebitwey and 13 others in the graft case.
Ingonga applied to terminate the charges against Chebitwey, Savula and his two wives Melody Gatwiri Ringera and Hellen Kepkor Kemboi and 13 others under section 87A of the criminal procedure code saying the same was necessitated by the death of star witness Jennifer Wambua, a former acting communications director at National Land Commission (NLC) and a High Court decision that found the contract at the centre of the dispute was valid.
The DPP through state counsel Wesley Nyamache told Milimani Chief Magistrate Lucas Onyina that the decision to withdraw the case against the 17 accused persons was reached after Wambua died in March 2021 and they are unable to get an alternative witness from NLC to testify.
Nyamache said his boss had directed the DCI to avail a suitable witness who would corroborate the evidence of the late Wambua who unfortunately passed on before she concluded her evidence.
The deceased went missing March 12,2021 and her body was later found dumped in Ngong Forest the following day after she testified and stood down in the fraud case against Savula and his co-accused persons.
The court heard that the Directorate of Criminal Investigations (DCI) communicated to NLC and later received a response from the commission where the said witness worked, dated April 15, 2024.
"The chairman of the said commission indicated that they were unable to provide alternative witness to testify or corroborate the evidence of Wambua due to the fact that she handled the matter in question between the commission and GAA solely," Nyamache told the magistrate.
Secondly, the state prosecutor urged the court to withdraw the charges saying the fifth accused person through the firm of senior counsel Ahmednasir Abdullahi had approached the office of DPP via a letter dated May 29, 2023 seeking to drop the charges following a High Court decision.
"In the said letter the fifth accused annexed a High Court judgment being civil case number 33 of 2019 by Johnnewton Communication Ltd, Sunday Publishers Ltd, Express Media Ltd, Cross Continents Venture Ltd, Shieldlock Ltd and Melsav Company Ltd against the Ministry of Information, Communication and Technology and in the said letter the court upheld the contract and indicated that the said contract in issue was legally enforceable," Nyamache said.
He said that after High Court Judge Maureen Odero found that a valid contract existed between the parties she ordered the Ministry of Information to pay the balance of the contractual sum of Sh58,967,500 which was outstanding to the six media houses and also upheld the initial payment of Sh108,212,500.
"It is instructive to note that the contract in issue before the High Court forms the substratum of the charges against the accused persons. The High Court having held the contract was legally enforceable it thus renders the charges against the accused persons absolute or mote," prosecutor Nyamache stated.
Based on the two reasons, the DPP urged the court to allow their request and terminate the entire case against the Savula and his co-accused.
"Thus the forgoing two reasons informed the DPP's decision to seek termination of the case. This decision is based on the public interest and the same is aimed at upholding and protecting the interest of the administration of justice," Nyamache said.
Defence lawyers led by Cohen Amanya did not oppose the request by DPP to drop the charges against the accused persons but complained that it had taken over six years to clear the matter when the accused were arraigned in court in 2018.
"The freed suspects were dragged to court when there was no evidence against them. We urged the DPP before making prosecution to always apply objectivity at all times before and during subsistence of a criminal charge," said Amanya.
"You have been given sufficient evidence to drop the charges. We urge you to allow the application by the DPP. We also seek the cash bail deposited by Savula of Sh1 million and his wives' Sh500,000 on October 29, 2018 and their passports be released back to them," he added.
Magistrate Onyina said he will make a ruling on whether the court will allow the DPP's application to withdraw the case on July 1, 2024.
In the case, Savula and his wives are listed as directors of Sunday Publishers Limited, Melsav Company Limited, Johnnewton Communications, Express Media Group, No Burns Protection Agencies Limited, Cross Continents Ventures Limited, and Shiledlock Limited, entities which are said to have irregularly received Sh122.3 million.
The arrest and presentation in court of Savula and his co-accused followed a probe ordered by then DPP Noordin Haji over an editorial published by one of the dailies in which the paper demanded action against GAA for failing to pay Sh2.5 billion owed to various media houses.
They face several criminal charges of allehedly conspiring to commit a felony of stealing, abuse of office, aiding the commission of a felony, making a document without authority, obtaining by false pretense and attempting to obtain money by false pretense.
The charge sheet states that on diverse dates between July 1,2015 and August 30,2018 at the Department for Broadcasting Telecommunication in Nairobi, the accused allegedly conspired to steal Sh122,335,500 from the ICT Ministry.
Savula and his two wives are charged that on January 10, 2017 at unknown place within the republic of Kenya with alleged intent to defraud, jointly with others not before court without lawful authority made certain false document namely Ministry of Health requisition letter purporting it to have been issued and signed by Judith Sirima of Ministry of Health.
