Intrigues cloud PCEA legal battle in Sh59m theft claim
Eric Wainaina @EWainaina
On October 10, 2017, the Presbyterian Church of East Africa (PCEA) leadership, through its former Secretary-General Rev Peter Kania (now deceased), launched a legal battle with its one time moderator David Gathanju and former staff, seeking to have them prosecuted over alleged theft of church money.
In a case filed at Kiambu Law Courts between January 2, 2016 and June 30, 2017, five staff were accused of stealing Sh59.9 million, while serving at the church’s head office at South C estate in Nairobi. But the case is yet to proceed, three years down the line.
Rev Gathanju, James Muiruri, Esther Wanjiku, Peter Mwangi and Samuel Muhoro denied the charges before Senior Principal Magistrate Stella Atambo who released them on Sh3 million bond each pending the hearing and determination of the case, where Kania, who died on July 20, was listed as the complainant.
Charges against Wanjiku and Muhoro were later dropped. The church published their photographs in local dailies to announce their dismissal over the case, which the defense had initially said would fuel an already brewing animosity in the church.
The case has continued to be marred by intrigues, with the prosecution making a series of adjournments, while the church has also been coming up with excuses, delaying the hearing date.
Unsuccessful attempts by the defence to defer plea-taking, failed arbitrations, adjournments caused by prosecution and the church, a vain plot to expunge evidence implicating the church and a fresh bid to withdraw it, have exposed the State as unready or unwilling to execute the case.
Last Friday, the prosecution through lawyer Donnex Ongila told Chief Magistrate Patricia Gichohi that he had instructions from the Director of Public Prosecutions to withdraw the case under Section 84A of the Criminal Penal Code which however, allows the re-arresting of accused persons.
“I have received instructions to withdraw the case under Section 87 A . The complainant is dead but the decision to drop the case was arrived at before the complainant died,” Ongila told the court, angering the defence which saw the application a plot to further delay the hearing.
Lawyer Danstan Omari for the prosecution objected to the fresh application, saying in October 2017, before the accused were arraigned, they had requested the Director of Criminal Investigations to refer the matter back to the church, to exploit its laid down mechanism to handle such a dispute but the police declined.
The prosecution, he said, also objected to the matter being arbitrated because the case “the State was excited to prosecute, could cause the church an irreversible damage.”
State Counsel Lydia Maari, who was later moved to another station, insisted the case must proceed, saying they had sufficient evidence to nail the accused.
“We spent close to five hours pleading with the court to dismiss this case on grounds that it was baseless and based on the succession politics of the church, but the prosecution refused, saying it had a water-tight case,” Omari told the court.
He added: “The accused took a plea, the matter started, midway the prosecution dropped charges for three other persons.
All through from 2017, the prosecution has not been ready to proceed.”
Until today, despite the court having on several occasions allocated the case three consecutive hearing days, only Jane Mwihaki, an accountant with the church’s finance department has testified in the case. The case is scheduled for a mention on September 25.
She gave her evidence on June 2, 2019, almost two years since the case began and even, her cross-examination was delayed for months by the intrigues which appear to be far from over.
Though the law allows withdrawal of a case but gives room for future arrests in case of fresh evidence, Omari sees it as an ulterior motive to further delay the case and demanded that it be terminated fully.
“The complainant is dead and can never come back to life and therefore, we object to anybody saying they want to withdraw the case under Section 87A. We have demanded a total termination of the case,” the lawyer said.