A Magistrate Court in Siaya has ordered the withdrawal of a complaint against the suspended Siaya county assembly Clerk Felix Olwero.
The ruling was delivered by Senior Principal Magistrate Lester Simiyu on April 11, 2024, following a letter from the Office of the Director of Public Prosecution (ODPP) citing insufficient evidence.
The accusations, which led to his suspension by the assembly, involved unauthorised creation of documents and issuance of a false document with deceptive intent.
Olweru was suspended from duty in 2019 by the County Assembly Service Board over the alleged loss of about Sh3 million.
A letter dated March 1, 2019, showed the Clerk was suspended over gross misconduct.
In the letter, Assembly Speaker George Okode demanded an explanation, within 21 days, on the whereabouts of Sh2,977,281 said to have been withdrawn from the Cooperative Bank of Kenya.
But in a letter dated March 11, 2019, Olweru denied the allegations, saying the money was used for car loan for himself and another officer identified as Zilpa Omondi who received Sh2 million of the amount.
Following the suspension of Olweru, Eric Ogenga was appointed acting Clerk, a position he has held for the last five years.
In 2021, the Employment and Labour Relations Court in Kisumu reinstated Olweru as the Siaya county assembly Clerk.
Justice Francis Radido quashed a decision of March 1, 2019, by the assembly to suspend and remove the embattled Clerk from office.
According to the judgment, Olwero was reinstated as the bona fide and legal Clerk of the assembly.
According to the April 11, 2024 ruling, the prosecution submitted that the matter be withdrawn under section 87(a) of the Criminal Procedure Code (CPC) on grounds that the evidence in the police files did not support the charge.
The prosecution further said that the orders issued by the Employment and Labour Relations Court on April 14, 2012, quashed the proceedings of the Siaya County Assembly Board which had revoked the appointment of the accused.
Counsel watching brief for the complainant, Omondi Okoyo in objection stated that the complainant objected the withdrawal under Section 87(a) of the CPC on grounds that the ODPP, in exercising their mandate should have regarded public interest, administration of justice and avoid abuse of legal process.
The accused on the other hand submitted that he authorised the document in question and he supported withdrawal by the state.
Olweru further submitted that the High Court invalidated the proceedings leading to his suspension and also suspended the proceedings leading to the second suspension.
After evaluation of the submissions, Simiyu said that it had not been adequately shown that the withdrawal by the ODPP offends the law or curtails the administration of justice.
“Consequently, the proposed withdrawal under section 87(a) of the CPC is indispensable. I proceed to allow withdrawal of the complaint and order that the accused is discharged for now,” ruled Simiyu.
Following the ruling, Human Rights Activist Chris Owalla applauded the court’s decision, terming the judgment long overdue.
He urged the Siaya county assembly to cease using police to harass Olwero over a matter previously dismissed by the labour court and now by the magistrate court.
“The DCI should also be called to order for being used by the assembly to frustrate Olwero with arrest warrants of none-existing cases,” he said.
Owalla also criticized Ogenga for acting beyond the six-month limit stipulated by the Public Service Commission Act.
“The Public Service Commission Act says that the acting limit should be 30 days to six months so by having Ogenga in office for that long is itself impunity and upfront to justice of which assembly took oath to project and uphold,” noted Owalla.
