Magistrate queries Noordin Haji's motive as he terminates case against Gachagua

The magistrate warned that the Judiciary will not be a passive arbitrator in any frivolous charges brought by the DPP and will resist being used as doormats to settle cases based on ulterior motives.

Wakumile allowed the application by Haji to withdraw the corruption case against Gachagua (pictured), Nyeri Senator Wahome Mwangi and eight others. He ruled that since the DPP wields so much power in deciding whether a person should face a criminal trial, his office is not subordinate to anyone and that the court does not understand why he approved charges against the DP when investigations were not complete.

Humiliation

According to the magistrate, charging someone in court is so humiliating, degrading, and depressing and can lead to death and family break-up if the DPP does not exercise his powers independently when deciding to prosecute the person.

"The question is how comes in the decision to charge the accused, the DPP seems to have acted and preferred charges based on inconclusive investigations? One cannot be faulted for thinking he acted under pressure from the Director of Criminal Investigations," ruled Wakumile.

While recommending that parliament should consider establishing the office of a pre-trial judge, the magistrate ruled that it is not fair to have judicial officers sitting long hours taking notes when the charges are brought with ulterior motives.

Wakumile ruled the office of the pre-trial judge, if established, will solve the disconnect between the DPP and DCI by looking into their activities to scrutinise any proposed charges before a person is taken to court. "Once the office is established and is functional, the pre-trial judge can find out if there is sufficient evidence, and chances there will be plea-bargain which will save the court's time as opposed to having someone taking a plea," he ruled.

As a result of the bad blood between Mr Haji and former DCI boss George Kinoti that led to the bungled charges against Mr Gachagua, the magistrate recommended that prosecutors and investigators take personal responsibility for their actions.

According to the magistrate, the prosecutors and investigators had traded blame games which should have not have occurred if individuals were asked to take personal responsibility.

"With personal liabilities, they will act professionally since power tends to corrupt. It is time all players in the criminal justice system have a soul searching as the law should not be applied selectively," ruled Wakumile.