The State is seeking to revive the case against Joshua Waiganjo, who was three years ago cleared of charges of impersonating a senior police officer in Rift Valley.
For seven years, Waiganjo, former Rift Valley Provincial police boss John Kaua M'Mbijiwe and Former Anti-Stock Theft Unit Commandant Remi Ngugi were in and out of court. Ngugi and M'Mbijiwe were facing abuse of office charges.
They were, however, acquitted by Principal Magistrate Joe Omido on May 8, 2020, after the court found there was no sufficient evidence to prove the three were guilty.
The trial commenced in Nairobi in 2013. It was transferred to Nakuru Chief Magistrate's Court for hearing and disposal in August 2014 where 40 witnesses testified.
On Wednesday, High Court Judge Hillary Chemitei sitting in Nakuru allowed the Office of the Directorate of Public Prosecution a final chance to serve the three with the petition of appeal filed on May 14, 2020.
The prosecution informed the court that they had not served them with the petition.
In the appeal, the State has faulted the trial judge for acquitting the three when there was more than sufficient evidence to place each of them on their defence, thereby occasioning a miscarriage of justice.
The DPP notes the trial magistrate erred by irregularly locking out the prosecution's exhibits that had been marked for identification, by unreasonably shutting the opportunity to avail witnesses. The State now wants the High Court to order a retrial.
"The trial magistrate erred in law by finding that a prima facie case would not suffice since the arresting officer and the investigating officer had not testified in the case," read the petition of appeal in part.
The Notice of Appeal signed by Victor Mule, Senior Assistant Director of Public Prosecutions on behalf of the DPP, said the court expressed bias by suggesting the prosecution was only entitled to ten minutes to present the investigating officer's evidence.
The DPP is seeking to pursue an appeal against Waiganjo based on a letter filed in court.
In the letter dated July 10, 2020 and signed by Daniel Karuri, Senior Assistant Director of Public Prosecutions, the DPP is notifying the court of withdrawal of the appeal against Ngugi and M'mbijiwe.
"Take notice the Republic being the appellant herein herewith withdraws its appeal against the 1st respondent Michael Remi Ngugi and the 2nd respondent Joshua Kaua M'mbijiwe but shall proceed with the appeal against the 3rd respondent Joshua Karianjahi Waiganjo only," reads the letter in part.
