Former presidential candidate Cyrus Jirongo can now breathe easy as the Supreme Court has quashed forgery charges against him, saying it would be unfair to try him 24 years after the offence was allegedly committed.
Five judges of the Supreme Court said the Constitution expects that in resolution of disputes, fairness must include promptness of action and the inhibition against unreasonable delay.
The Judges, led by Deputy Chief Justice Philomena Mwilu, said what amounts to reasonable delay includes both the reason for the delay and the period of delay.
“It is therefore our finding, and in agreement with the learned Judge of the High Court, that the prosecution of the appellant (Jirongo) is in breach of his right to a fair trial as protected by Article 25(c) as read with Article 50 of the Constitution,” the judges said.
The top court said although there is no limitation of time to institute and prosecute criminal offences, where the delay inhibits a person from mounting a credible defence, the High Court is properly mandated by the Constitution to step in and stop the intended prosecution.
The Judges agreed with High Court George Odunga, who quashed the charges only for them to be reinstated by the Court of Appeal, that where a prosecution is being mounted to aid proof of matters before a civil court, Section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action.
The dispute arose sometime in 1991, when Mr Jirongo entered into a land sale agreement with his former business partner Sammy Boit Kogo and Antoinette Boit, through his Soy Development Ltd.
The agreement for the Upper Hill property was for Sh20 million but document documents filed in court showed that he paid Sh10 million.
He later charged the title deed to City Finance Bank for a loan of 30 million. He repaid the money and took another loan of Sh50 million from Post Bank.
A dispute arose in 2015 when Mr Kogo claimed Mr Jirongo was holding himself as a director of SDL, and that he secured an overdraft from Post Bank.
Through Dr Ken Kiplagat, Mr Jirongo argued that Mr Kogo and the DPP were using the courts to validate the claim that the title to the property was lost when in fact, they had surrendered it to their advocate.
Mr Jirongo, who was charged before a Nairobi court in 2019, moved to the High Court and managed to quash the charges. However, Mr Kogo and DPP appealed and the Court of Appeal reinstated the case.
Dr Kiplagat added that the move to charge him was unreasonable and an afterthought as it was intended to save a civil case pending before the Environment court, where it is claimed that the title deed was lost.
The Court of Appeal, revived the case stating that the 24-year delay had being satisfactorily explained and that the DPP acted within its mandate, in initiating the prosecution.
The Supreme Court said although the DPP is not bound by recommendations made by any person, being a public body, if its shown expectations under Article 157 (11) of the Constitution have not been met, then the High Court may interrogate its actions and make appropriate orders.
“On public interest, what is in issue is a dispute arising from a commercial transaction 24 years ago, where the complainants have not denied receiving part payment of the purchase price. There is hardly any public interest element in such a transaction save the wide interest of the law to apprehend criminals,” the Supreme Court ruled.
