Prosecution, defense lawyers differ over Sh177m Maasai Mara University graft case

The main entrance to Maasai Mara University. [File, Standard]

The Director of Public Prosecutions (DPP) Renson Ingonga and lawyers representing Maasai Mara University Vice Chancellor Mary Walingo and four others are embroiled in a fierce battle over whether to withdraw or close the Sh177 million corruption case.

While the DPP charges against the five were withdrawn, the defence lawyers want the file closed.

Senior Assistant DPP Hassan Abdi filed a nolle proseque (a will not prosecute) application in the case facing Prof Walingo, 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.

He cited a decision by the High Court dated March 21, 2024, in a petition the five had filed.

“I hereby enter a Nolle Prosequi (will not prosecute) and inform this court that the republic intends that the proceedings against Mary Walingo and four others who are charged in MCAC2/2020 shall not continue,” read the application in part.

Justice Hillary Chemitei, in March, while ruling on an application by Walingo dated December 22, 2022, said there were serious loopholes in the evidence provided by the prosecution vis a vis the charges.

The court ruled that the charge sheets in the case were defective since the amount of money alleged to have been lost did not tally with the evidence produced.

Justice Chemitei questioned the manner in which the forensic investigations were conducted saying this might have been done to satisfy some third parties.

The court also faulted the police for drafting and signing the charge sheets saying their role ought to have ended at investigations.

Justice Chemitei said the Kenya Police usurped the powers of the DPP by making the decision to charge, draft the charge sheets, and sign them.

He said the investigations, recommendations to the DPP, and the subsequent charging of the five violated their constitutional rights and were abuse of the court process hence unlawful, null, and void.

The Judge quashed the 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.

Lawyers Jaoko Nchoe, Diana Nekoye, Manwa Hosea, Steve Biko and Raydon Mwangi, representing the five yesterday, objected to the application by the DPP to withdraw the charges.

The lawyers, while appearing before Chief Magistrate Bildad Ochieng, said they have not had the privilege of perusing the application by the prosecution. They maintained that the judgment by the High Court quashed the proceedings before the magistrate court in total.

They noted that the DPP participated in the proceedings at the High Court, and it would be in bad faith for them to apply not to prosecute after a judgment by a superior court had been delivered.

The lawyers want the magistrate court to comply with the decision of the superior court, and close the file.

“We oppose an attempt to introduce the application for Nolle prosequi. Under Article 157 (6) (c) of the Constitution of Kenya as read with Section 82 of the Criminal Procedure Code, the ODPP can only get a nolle prosequi before a judgment is entered,” said Nchoe.

Nchoe noted that in the case facing their client, a judgment had already been entered, and the State lost. He argued that the State has found itself in a tight corner and is trying to become oppressive.

“The attempt to apply for a nolle prosequi is to oppress the accused person, and we pray that you decline the same and abide by the decision of the High Court and have the property of the accused person returned to them,” he said.

Lawyer Nekoye said the nature of the judgment delivered by the High Court quashed the proceedings before the magistrate court, and the prosecution cannot purport to discontinue a case that no longer exists.

“We pray that this matter be marked as quashed and that the prosecution’s application be dismissed,” she said.

Lawyer Mwangi said they do not intend to entertain the application by the prosecution.

Lawyer Biko insisted that there is nothing at the magistrate court to take directions on in the file.

“The only role remaining is to close the file, and anyone with any grievance to appear before Justice Chemitei on a review or to go straight on appeal. Any other thing proceeding before you now is an intent to create a new charge sheet,” he said.

Biko noted that the Vice-Chancellor and the other four have had their lives stopped for over four years, and nothing is holding them, and their liberty should start now.

The court will deliver a ruling on the application by the DPP on May 28, 2024.