Court rejects DPP bid to overturn the acquittal of businessman Brian Yongo

The Director of Public Prosecutions (DPP) has suffered a major blow after the High Court rejected its bid to overturn the acquittal of city  businessman Brian Yongo Otuba over a Sh4 million forgery and fraud case.

In a ruling rendered by Justice Alexander Muasya Muteti at the Milimani High Court, the court dismissed the DPP's appeal after finding he had failed to demonstrate any basis for interfering with the trial court's decision to free Yongo of charges of allegedly using a forged Range Rover logbook to obtain a Sh4 million loan from Mwananchi Credit.

The appeal stemmed from a criminal case in which Yongo and Wayaga Construction Company Limited had been charged with four offenses of forgery, uttering a false document, obtaining money by false pretenses and being in possession of suspected stolen property.

According to the charge sheet, the prosecution alleged that the businessman fraudulently obtained a Sh4 million loan from Mwananchi Credit Limited after presenting a forged Range Rover logbook as security.

The DPP challenged the acquittal by the then Senior Principal Magistrate Ben Mark arguing that the trial court had failed to properly evaluate the prosecution's evidence and had wrongly acquitted Yongo despite what it termed overwhelming evidence proving the offences.

Among the grounds of appeal, the DPP argued that the magistrate erred in finding that it had failed to discharge its burden of proof, disregarded evidence presented by prosecution witnesses, failed to appreciate the ingredients of the offences and did not properly analyse the evidence before acquitting the accused.

Yongo, who appeared in person before the High Court, opposed the appeal through a preliminary objection, arguing that the record of appeal filed by the DPP was fatally defective because it omitted his written submissions before the trial court.

He maintained that the omission violated his constitutional right to a fair hearing and denied the appellate court an opportunity to fully interrogate the trial court's decision.

Justice Muteti agreed that although the omission was a curable defect, the appeal itself was fundamentally weak.

"The failure to include the submissions of the respondent in the lower court though a curable defect, cannot be excused where the appeal is found wanting under Section 352 of the Criminal Procedure Code," the judge ruled.

The judge also faulted the prosecution for failing to explain why it had taken nearly two years without seeking leave to file a supplementary record of appeal.

"The DPP did not however say why that has not been done for close to two years... any further delay in the appeal would occasion a failure of justice. The court cannot countenance such unexplained lapses," Justice Muteti said.

He observed that the DPP had not even sought leave to file a supplementary record and accused the prosecution of failing to diligently pursue the appeal.

Justice Muteti further emphasized that criminal appeals against acquittals should be prosecuted expeditiously because an acquitted person should not be subjected to prolonged uncertainty.

"The appellant cannot be allowed to keep the threat of prosecution hanging over the head of the respondent like the sword of Damocles. The right to an expeditious trial in a criminal matter includes the right to a speedy determination of any appeal," he ruled.

He added: "Equity assists the vigilant. The appellant in this matter is guilty of inertia and has not demonstrated why for close to two years there has not been any application on their part to seek leave to file a supplementary record of appeal."

After independently reviewing the evidence, Justice Muteti concluded that the trial magistrate had properly acquitted Yongo.

"Having gone through the record, this court finds that the decision of the learned Honorable Magistrate to acquit the respondent was properly grounded in law and evidence thus the appeal cannot possibly succeed and lead to reversal of the decision of the trial court," the judge held.

He consequently allowed Yongo's preliminary objection and summarily rejected the DPP's appeal, bringing to an end the DPP's attempt to revive the eight-year-old criminal case the businessman.