Director of Public Prosecution (DPP) Noordin Haji has appealed against the acquittal of alcohol tycoon Humphrey Kariuki and five others in a case over possession of uncustomed ethanol worth Sh7.4 million.
The DPP has termed last week’s decision by Milimani Senior Principal Magistrate Kennedy Cheruiyot unfair and without any factual or legal basis.
Mr Haji wants the High Court to quash or set aside the ruling which cleared Mr Kariuki and his co-accused Peter Njenga, Robert Thinji, Eric Mulwa, Kepha Gakure, African Spirits Limited and Wow Beverages Limited.
"We [want] the order of acquittal quashed and/or set aside and [for the court] to declare the prosecution before the magistrate as amounting to a mistrial," Mr Haji says in his petition.
Through State counsel Carol Sigei, the DPP said he also wants the High Court to issue an order for the matter to be heard afresh before another trial magistrate.
Mr Haji argues that the magistrate erred in failing to discharge his judicial duty of maintaining accurate records of the proceedings, making them a nullity.
He also says the magistrate considered irrelevant or extraneous matters thus arriving at an unjust decision in law.
The DPP further says Mr Cheruiyot made a legal mistake by declining to grant an adjournment on December 7, and adjourning the matter in the court's own motion, without notice to the prosecution, to December 8.
"This decision was actuated by considerations other than the interests of justice and demonstrated outright bias against the prosecution," reads the petition.
Mr Haji also cites the magistrate claim that the court had the right to intervene and exercise control over the prosecutions' exercise of the State powers of prosecuting.
He notes, however, that in one of the paragraphs of the ruling, the trial magistrate went on to observe that "the court would be deemed to be interfering with the DPP's discretion as to who to call as a witness, what to present as evidence or exhibits and by whom, how many witnesses to call and when to close the prosecution's case".
The prosecution also says it was wrong for Mr Cheruiyot to entertain arguments that persons charged under different statutes, though arising from the same transaction, cannot have their cases consolidated.
He says provisions of sections 134, 135, 136 and 137 of the Criminal Procedure Code permit such a consolidation.
"He erred by failing to invoke provisions of section 76 of the Criminal Procedure Code, by referring the matter to the High Court when he was not certain about which court, [whether Chief Magistrate Francis Andayi or Martha Mutuku's], would have the necessary jurisdiction to consider the question of consolidation," says the DPP.
The DPP also raises the question of the number of counts resulting from such consolidation as well as whether the accused persons can be tried for offences under different statutes in the same charge sheet.
In his ruling, the trial magistrate said the prosecution was not ready to present any evidence in court even after scheduling the case to be heard back to back for three days.
“Since the prosecution is not ready to prosecute this case, I proceed to dismiss both charges and acquit the accused persons under section 202 of the Criminal Procedure Code,” said the magistrate.
He found no reason that made it proper or appropriate to adjourn the hearing of the case. This was after the DPP asked the court to adjourn the matter to allow its consolidation with two others Mr Kariuki is facing at different courts.
Mr Cheruiyot concurred with defence lawyers led by Kioko Kilukumi that the application by the DPP to suspend the proceedings was unreasonable and unjustified, and further held that it was against public interest and the interest of justice to adjourn the case.
Mr Kariuki and his co-accused were allegedly found with 80 250-litre drums of ethanol inside a trailer truck, for which they had not paid the relevant duty.
When they were charged last year, the DPP opened three different files on several counts including forgery, money laundering and tax evasion.
