Court dismisses DPP attempt to withdraw Sh221m SGR case

SGR's Voi terminus in Taita Taveta County. [David Gichuru, Standard]

The High Court has dismissed a bid by the Director of Public Prosecutions to terminate Sh221 million Standard Gauge Railway land case.

Justice Esther Maina has ordered the DPP to proceed with the prosecution of former National Lands Commission Chairman Mohamed Swazuri, former Kenya Railways Corporation boss Atanas Maina and businessman David Barno for alleged conspiracy to defraud public funds.

"The accused persons shall not suffer any prejudice if the court declines the DPP's application to terminate the case. It is only after the end of the trial that the trial court will conclusively make a determination on their innocence," ruled Maina.

Justice Maina stated that the trial magistrate Eunice Nyutu made the correct decision when she declined to allow the DPP's request to withdraw the case against some of the accused on the basis that so many witnesses have testified and the case is nearing conclusion.

The DPP on March 29 filed an application to withdraw the charges against Barno, his wife Esther Chebet and their three companies Dasahe Investment, Keibukwo Investmemt and Olomotit Estate.

According to the prosecution, Barno and his companies allegedly acquired land belonging to Kenya Railways and later got paid over Sh221 million as compensation when the land was public land.

The DPP, in his application to withdraw the charges, stated that after reviewing the file, he discovered that the businessman and his companies did not commit any offence when receiving the money.

However, the trial magistrate declined the DPP's application and ruled that the case will proceed to conclusion, and that it was an abuse of the court process for the DPP to withdraw the case after five years when the case was almost coming to an end.

It is the decision Barno and his wife appealed at the High Court.

According to the couple, the DPP was justified to withdraw the case after reviewing information from NLC, Ministry of Lands, Chief Lands Registrar and Department of Survey, which confirmed that there was no criminal culpability in the compensation.

Justice Maina, however, dismissed their claims stating that the magistrate had discretion to determine which cases go to full trial.

"I am unable to find that the magistrate made a mistake since she correctly addressed her mind to the principles which correctly guided her in determining whether or not to grant the request by the DPP to terminate the case," ruled Maina.