The woman, according to the police, lied that Zimbabwean national Buberry Bonnie Newman, who is also a UK citizen, had sexually assaulted her daughter.
She was arrested and charged with giving false information to the police. According to the prosecution, Ms Mutaiwua lied that her 17-year-old daughter had been defiled by the foreigner, but upon investigations, it was discovered that the allegations were false.
However , the Office of the Director of Public Prosecutions (ODPP) in December last year withdrew this case.
The reason for the withdrawal was not due to lack of evidence, but to allow Ms Mutaiwua to testify in another criminal case against Turkish tycoon Osman Elsek , who is battling a child defilement case before a Malindi court.
Correspondence between the police and the ODPP indicates that the matter was withdrawn following a request from Child Protection Unit in Mombasa.
“We are notified that the said accused person is a key witness in the above named case and the Anti-Human Trafficking and Child Protection Unit, which is the investigative unit in the above named matter, have sought that we review the charges and pursue a withdrawal to enable the Malindi case to effectively proceed,” the correspondence between ODPP Malindi and Mombasa reads in part.
The letter further asked the prosecutor’s office in Malindi to prepare a brief outline of the case against Mr Elsek and the significance of the evidence of Ms Mutaiwua to enable the state decide whether to withdraw the charges the woman was facing before a Shanzu court.
A letter dated July 16,2020 confirmed that the case against Ms Mutaiwua was withdrawn following the directive from the DPP on grounds that her evidence against Mr Elsek was vital.
“From our records, the matter was withdrawn under Section 87(a) of the Criminal Procedure Code on December 17, 2019 before Shanzu Senior Resident Magistrate David Odhiambo. Having been notified of the position of the above named matter, the file is returned back to your offices,” a letter signed by Senior Prosecution Counsel Maureen Anyumba and addressed to the Officer in charge of Child Protection Unit in Mombasa said.
The withdrawal of the criminal case against Ms Mutaiwua has however angered Mr Elsek, who has since written to the ODPP seeking reinstatement of the criminal case facing the woman.
Through his advocates Daniel Wamotsa and Eugene Wangila, the foreigner says that ODPP’s actions clearly demonstrates that the criminal case against him is a case of malicious prosecution and an onslaught against the law and Section 26 of the ODPP Act 2013. Mr Elsek laments that it is not only illegal but unfair and immoral for the police to ask the DPP to withdraw the case simply because Ms Mutaiwua is a witness in his case “to enable the case to effectively proceed.”
“We protest vehemently the decision to withdraw the charges facing Ms Mutaiwua as the same had a lot of impetus in our client’s case considering that we are convinced that she also maliciously, with deceit, made false allegations against our client,” said Mr Wamotsa and Wangila.
The foreigner laments that the manner in which the two cases are being handled greatly undermines the administration of justice and is an abuse of court process. He claims that witnesses are being coached to fix him.
“We hereby ask your office to review the decision withdrawing the charges since the only reason her case was withdrawn is to enable her to testify against our client while she continues to manufacture false sexual offences accusations against innocent people,” said the advocates.
According to Mr Elsek, the criminal case against the woman should have been prosecuted to its logical conclusion.
He sought to rely on the case to discredit her testimony and paint her as a false witness in the criminal case against him, which is pending before Malindi Court.
The prosecutors had accused the woman of falsely informing Chief Inspector Andrew Waroi that Mr Newman defiled her daughter.
The dramatic arrest and detainment of the Zimbabwean national spoiled his planned engagement to his Kenyan girlfriend. He went back to the UK after his emotional testimony before the court.
