U-Turn On Sonko In Ksh357 Million Graft Case

The High Court has overturned the acquittal of former Nairobi Governor Mike Sonko in a case relating to the alleged misappropriation of funds amounting to Ksh357 million belonging to the Nairobi county government.

Justice Nixon Sifuna, who presided over the case in the High Court on Wednesday, December 11, determined that the magistrate who made a ruling on Sonko’s case made an error by relying on an amended charge sheet. This means that the case will return to trial.

"The said ruling falls flat in its tummy....In arriving at a ruling on whether the Director of Public Prosecutions (DPP) had made a prima facie case, each count and evidence ought to be considered and a conclusion given...the finding can't be in a general manner," Sifuna noted.

In his ruling, Sifuna directed the matter be retried by another magistrate, who 'shall start by making a fresh ruling on the basis of the evidence on the record'.

Milimani Magistrate Eunice Nyutu had beforehand released the former county boss and the 16 co-accused, ruling on Wednesday, February 7 that there was no evidence adduced by the prosecution to show that they conspired to embezzle the aforementioned funds.

She added that the evidence was weak and could not be relied on to convict. "After carefully considering the testimony of six witnesses, the evidence adduced is inadequate to sustain the charges levelled against the accused persons," Nyutu ruled then.

"The prosecution only managed to call six witnesses before they bungled up their case," she added against an earlier indication that the case was built around the testimonies of 38 witnesses.

The case which has been in court since 2019 has seen Sonko accused with 16 others of misusing public resources while he served as Nairobi governor. Together with a private liability company, Sonko and others were accused of embezzling cash to the tune of Ksh357 million meant for projects of the Nairobi County Government. 

The embezzling was alleged to have happened between May 24, 2018 and March 28, 2019, before Sonko's impeachment as Governor on December 3, 2020. 

The prosecution had managed to call only six witnesses with the prime witness testifying for a year. The trial took off in 2021 following the COVID-19 pandemic.

The Magistrate expressed her frustrations brought about by the DPP who she said has on several times sought an adjournment in the case. "It's tragic that a prosecution can lose sight of a case. The conduct by prosecution in this case reeks of neglect of duty," she said.

She took issue with the prosecution for failing to conduct the case in a manner that promotes public interest and public good. To cure this defect, the Magistrate said Parliament ought to develop regulations to make prosecutors accountable for how they conduct public cases and hold them accountable for negligence.