Acquitted Sh2.3bn Miwani Sugar land case suspects to be charged afresh
The High Court has ruled that all the accused persons charged with defrauding Miwani Sugar Company of land worth Sh 2.3 billion be put on their defence.
While allowing an appeal by the Director of Public Prosecutions (DPP) Noordin Haji to set aside a decision by Kisumu Chief Magistrate Julius Ng’arng’ar to acquit the suspects and they be put on their defence, Justice John Onyiego said the prosecution had proved a prima facis case against the all the accused persons.
"The evidence against all the accused was sufficient in my view to offer an explanation on their defence," court ruled.
Justice Onyiego also directed Kibos Sugar Chairman Sukwinder Chatte, Ian Maina, Philip Odongo, Epanaito Okoyo appear before the trial magistrate Ng’arng’ar where they will now give their defence in the case.
Haji had appealed the magistrate's decision to acquit four people accused of defrauding Miwani Sugar Company the land which is said to be a public land.
The four had been jointly charged alongside former magistrate Adulakadir Elkindy and Moses Osewe a former revenue officer with conspiracy to defraud Miwani Sugar Company of 9,394 acres of land between May 21, 2007 and January 30, 2008.
All accused persons were accused of hiving off part of the public land and transferring it to Crossly Holdings Limited in collusion with senior lands officials.
But on May 20 this year, Magistrate Ng’arng’ar acquitted Maina, Odongo, Singh and Okoyo.
He ruled that Osewe and Athmani had a case to answer and put them on their defence.
At the same time the court has also declined an application by they DPP to have the defence case be placed for hearing before any other magistrate other than the trial magistrate Ng’arng’ar.
In his ruling, Justice Onyiengo declined the request noting that the trial court heard the prosecution case against all the nine accused persons together but placed two of the accused persons namely Osewe and Athmani on their defence and they did not participate in the appeal.
"This court cannot separate the defences of the Osewe and Athmani and l direct that they be heard separateLY. The prosecution case a total of 30 witnesses testified is complete, it would be difficult and as well be prejudicial to all the accused persons to have a person who had not heard the witnesses take it over at defence stage nor will it be prudent in the circumstances given the length of time that has elapsed since the events forming the subject matter occurred and the challenges that may arise in respect to availability of witnesses to order that it may be heard afresh before another magistrate," ruled Justice Onyiengo.
The DPP through Fredrick Ashimosi filed the acquittal saying the trial magistrate did not consider the evidence on record while acquitting the four accused persons in the case.
Ashimosi informed the court that the magistrate erred in law in finding that the prosecution had not established a prima facie case on the illegal acquisition and disposal of public property.
"The magistrate made a mistake in acquitting the accused on grounds that there was no proof the 9,394 acres belonged to Miwani Sugar Company when it was clear from the evidence that the title was registered in the company’s name,” said Ashimosi.
“It was a clear contradiction there is no way you can find the transfer documents were issued illegally and still rule there was no conspiracy by the accused person in the grabbing of the public property.”