The High Court has restrained former Baringo Central MP Sammy Mwaita from interfering with a Sh50 million Karen property over which he and a businessman, whom the Director of Public Prosecutions (DPP) has started prosecuting, are in dispute.
Howard Mururu Mugambi opposed his trial before Milimani Chief Magistrate Susan Shitubi, claiming that the criminal process was being abused by the High Court taking up the matter.
Defence lawyer Joseph Mbalu Mutava told the magistrate that the High Court had fixed February 4, 2025, to hear the property dispute.
"The prosecution of Mugambi by the DPP should await the determination of the ownership of the property that is the subject of this intended criminal case by Lady Justice Jacquline Ann Mogeni," Mr Mutava urged.
Ms Shitubi was urged by the suspect to reject the invitation to answer the charge of conspiracy to defraud Mr Mwaita of the land in the upmarket Karen suburb of Nairobi City.
"The matter before this magistrate's court is a parcel of land in Karen, Nairobi, the ownership dispute of which is being heard by Justice Mogeni of the Environment Lands Court Division of the High Court," Mr Mutava told Ms Shitubi.
Mr Mutava urged the magistrate to defer the prosecution of Mr Mugambi pending the outcome of the case, which is due in the High Court on February 4, 2025.
The lawyer argued that the court process was being abused by using the police to defeat justice by initiating investigations into the property dispute that is before the High Court.
"This is a total abuse of the court whose precious time should be used for the advancement of justice," Mutava told Ms Shitubi in his submissions.
The defence lawyer told the magistrate that Mr Mugambi was the legal owner of the property which was sold to him by Mart Property Limited on November 18, 2021.
"Mr Mugambi purchased the property through a sale and purchase agreement dated 18 November 2021 from Mart Property Limited," Mr Mutava told Ms Shitubi.
He said upon payment of the sale price of Sh50 million, Mart Property Limited transferred the property L.R No.13791/3 into his name.
"A title deed was issued by the Lands Office in his (Howard Mururu Mugambi's) name," Ms Shitubi heard.
The prosecution was vehemently resisted by the suspect, who implored the magistrate to tilt the scales of justice in his favour by quashing the charge sheet since the High Court had recognised him as the owner of the disputed land.
Mr Mutava produced a copy of the title deed issued in the name of Howard Mururu Mugambi and a copy of the sale agreement duly signed by all parties to the land transaction.
The court was told by the lawyer that the charge sheet was flawed as it alleged that Mr Mugambi pretended to be the owner of Mart Properties Limited which sold the land to him.
"The irony of this matter is that in the charge sheet filed in court, the police claim that Mart Property Limited turned against itself to fraudulently acquire its own property," Mr Mutava submitted.
He applied for the suspect to be released on bail, saying he was out on police cash bail of Sh50,000.
Ms Shitubi released him on a cash bail of Sh100,000 until September 5, 2024, when she will decide on the legality of the charge in the light of the High Court case and the existing orders identifying Mr Mugambi as the owner of the land despite the litigation.
