Court awards man Sh4.2 million for wrongful conviction

A man who sought Sh5 billion compensation from the government for wrongful prosecution and imprisonment has been awarded Sh4.2 million only.

Francis Simiyu, a former Chief Executive Officer of the Christian Health Association of Kenya (CHAK), went to court seeking compensation after he was jailed for four years in 1979 for stealing Sh3 million.

He sued the Attorney General, the Inspector General of Police, the Director of Public Prosecution, and CHAK.

In the case filed in 2020, Justice Reuben Nyakundi of the High Court in Eldoret found that Simiyu was wrongfully jailed 41 years ago.

The 79-year-old claimed he had been maliciously prosecuted, convicted and sentenced in connection with the Sh3 million theft from his then-employer CHAK in 1979.
In his testimony, Simiyu said that he was on study leave in the US, which CHAK supported to the tune of Sh60,000.

Not long after, CHAK reported the theft to the police, which they suspected was carried out by Simiyu.

This led to the impounding of four Matatu Peugeot 404 pick-ups and a Massey Ferguson tractor by the state, which also saw him arrested and charged with 46 counts of theft.
The seizure took place on September 6, 1979.

He was tried and found guilty at the Chief Magistrates Court, where he was sentenced to four years imprisonment.

Simiyu filed an appeal at the Court of Appeal, where Justice HG Platt and Justices JM Gachuhi and James Nyarangi (both deceased) set him free in August 1987.

By the time the judgment was delivered, he had already served the jail term, and the court offered an apology for his predicament.

In his case for compensation, Simiyu said that the theft allegations were malicious, and the police carried out shoddy investigations while the prosecutors had him face trial in court despite the lack of sufficient evidence.

Simiyu further argued that investigations and evidence from the prosecution’s key witness showed he was not connected to the theft.

The Attorney General denied all allegations raised by Simiyu and instead called for the dismissal of the case.

In their testimony, CHAK said that the police and the prosecutors should answer any questions Simiyu raised on how the investigations and prosecution took place.

CHAK argued that Simiyu’s prosecution over  theft and embezzlement was based on proper investigations by the police that found him culpable.

The embezzlement happened between 1976 and 1979, and the money was moved in several batches, totalling Sh3.02 million.

CHAK also questioned why Simiyu filed the case more than 40 years after he had been exonerated, saying that some of the records were not available, persons with information regarding the case could not be traced, and some were dead.

In response to the call to dismiss the case for being time-barred, Justice Nyakundi found that the filing of his appeal was within the Limitations of Actions Act.
“On this ground alone, the suit is well within the timelines.”

He also found that the prosecution lacked reasonable and probable cause since the police had failed to correctly document the evidence of Simiyu’s approved study leave.

“The hasty disposal of the Plaintiff's property while his appeal was pending further suggests that the prosecution was driven by improper motives rather than a genuine pursuit of justice.”

The judge said the disposal of the four vehicles and the tractor while the appeal was still pending prevented any meaningful restoration of his property rights even after his successful appeal.

“Such actions suggest a disregard for the possibility that justice might ultimately vindicate the plaintiff's position.”

Justice Nyakundi argued that even though monetary compensation cannot fully restore the years Simiyu lost through wrongful imprisonment, it will be the best attempt to make amends for the injustice suffered.

In the end, the judge awarded Simiyu Sh520,000 as damages for the seized motor vehicles, Sh200,000 for false imprisonment, and Sh3.5 million for malicious prosecution.