On August 26, 2020, at the height of the Covid-19 pandemic, Maasai Mara University Vice-Chancellor Mary Walingo and four others were arraigned in a Nakuru Court.
They were charged with alleged misappropriation of Sh177 million.
The proceedings were conducted via Zoom in the full glare of the cameras at Central Police Station in Nakuru.
The small room was packed and police officers had a difficult time enforcing social distance regulations, then put in place to combat the spread of Covid-19.
Walingo was masked up and she wore a veil overhead.
Together with her co-accused-Deputy Vice Chancellor in charge of Administration Somon Kasaine Ole Seno, Deputy Vice-Chancellor in charge of Finance and Planning John Almadi Obere, Former acting Deputy Vice-Chancellor Academic and Student affairs Anacklet Biket Okumu and Vice Chancellors Driver Noor Hassan Abdi, they followed the proceedings keenly.
The five denied the charges and were each released on a Sh20 million bond with surety of a similar amount.
Three years later Walingo, and the four are off the hook after a High Court in Nakuru declared that the threshold to sustain the alleged stealing of funds had not been met.
Justice Hillary Chemitei while ruling on an application by Walingo dated December 22, 2022, said there are serious loopholes in the evidence provided by the prosecution visa vis the charges.
Walingo filed the application claiming the investigations and recommendations wanted the High Court to issue orders quashing the charges. She named the Directorate of Criminal Investigations, Director of Public Prosecutions, Maasai Mara University, the Auditor General, and the Chief Magistrate Court as respondents in the case.
Ole Seno and Okumu were named as interested parties.
The five were represented by lawyers Steve Biko, Manwa Hosea, Simiyu Murambi, Kemboi Sirma, and Raydon Mwangi.
In the application, Walingo claimed the DCI and the DPP usurped the powers of the Ethics and Anti-Corruption Commission in commencing investigations on the alleged offences against her yet they had no powers to institute criminal proceedings about the alleged economic crimes.
She went on to state that the charge sheet was defective because it was signed by Officer Commanding Station - Nakuru Police Station and not signed and approved by officers of the Director of Public Prosecutions and it has defective and duplex charges.
The Office of the Auditor General's reports from 2016 - 2020 she noted confirmed that Maasai Mara University funds were not misappropriated and had been lawfully and efficiently applied which is inconsistent with the particulars of the charge sheet.
The funds alleged to have been stolen and misappropriated she said cannot be confirmed by the Office of the Auditor General as Maasai Mara University has not attached any supporting documents and had not been verified by an independent auditor.
Walingo wanted the court to issue orders that the investigations, recommendations to the DPP, and the subsequent charging violated her constitutional rights and an abuse of the process of the court.
She pleaded with the court to quash the entire charges and charge sheet and that the court should declare she was illegally and wrongfully charged.
The court ruled that the charge sheets in the case were defective since the amounts of money alleged to have been lost did not tally with the evidence produced.
He questioned the manner the forensic investigations were done adding that it might have been done to satisfy some third parties.
"In effect, I think there was no sufficient forensic investigations done and if there was one then the same was hurriedly done perhaps to satisfy some third parties or some ulterior motive. The same did not meet the threshold for charging the petitioner and her colleagues in such a serious matter based on fraud and conspiracy," read the judgment.
The police were also faulted for drafting and signing the charge sheets as the court said their role ought to have ended at investigations.
Judge Chemitei said the Kenya Police usurped the powers of the Director of Public Prosecutions by making the decision to charge, drafting the charge sheets and signing them.
The DPP, DCI, the University, the Auditor General and the Chief Magistrate's Court Chemitei said abused their power. He said they ought to have followed proper protocol.
"Their role should have ended at investigations and submitting their report (s) to the DPP for further action as found above. The net effect was that there was an obvious crossing of lanes, so to speak, which the Constitution did not envisage and which this court is mandated to correct," he ruled.
The court ruled that it was not persuaded that Walingo and the four conspired to steal the alleged lost funds from Masai Mara University.
"If for any chance the court was to allow the prosecution to proceed then it would be condoning an abuse of court process and subjecting the petitioner and the interested parties to unnecessary litigation. In short, the respondents have not met the necessary threshold to sustain the charges against them," stated Justice Chemitei.
Judge Chemitei said the investigations, recommendations to the DPP, and the subsequent charging of the five violated their constitutional rights and was an abuse of the process of the court and therefore unlawful, null, and void.
He issued orders quashing the entire charges and charge sheet dated August 26, 2020, and criminal proceedings against the three.
Further, the judge issued orders barring the DCI, DPP, and the University from investigating, recommending the prosecutions, or commencing any prosecution of Walingo concerning the criminal case.
