Nairobi — A Nairobi Anti-Corruption Court has rejected an application by the Director of Public Prosecutions (DPP) to withdraw a Sh58 million graft case against former Nairobi Governor Evans Kidero, ordering that the trial proceed to its conclusion.
In a ruling delivered by Chief Magistrate Celesa Okore, the court found the prosecution's attempt to terminate the case at this stage to be premature, misconceived and not supported by the evidentiary record.
"I wish to categorically say that although this matter has been pending for a considerable period of time, the evidentiary record before the court remains minimal," Okore ruled.
The magistrate noted that while the prosecution had lined up 36 witnesses, only six had testified, leaving significant gaps in the presentation of evidence.
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"There is much to be covered in terms of the evidence intended to be adduced by the remaining witnesses," she said, adding that the limited testimony could not justify closing the case.
The case centres on allegations that Sh58 million was irregularly paid by Nairobi City Hall in January 2014 to a law firm for legal services that were allegedly not rendered during Kidero's tenure. He has denied any wrongdoing.
Okore held that the court has a duty to ensure all relevant evidence is placed before it before making a determination, invoking Section 150 of the Criminal Procedure Code, which allows the court to summon or recall witnesses to ensure a just outcome.
She emphasized that allowing the prosecution to proceed would not prejudice the defence, as the accused had already been furnished with witness statements and would retain the right to cross-examine the remaining witnesses.
"At the same time, it is my considered opinion that the prosecution will not be filling any gaps and that the defence shall not be prejudiced in any way," she ruled.
The court further rejected any argument that continuing with the case would amount to repairing a weak prosecution, noting that the strength or weakness of the case can only be assessed after all evidence has been presented and tested.
"It is important to note that the strength of the prosecution case is yet to be determined," Okore said.
The magistrate also cited submissions by the investigating officer and counsel from the Ethics and Anti-Corruption Commission, indicating that additional witnesses were available and ready to testify.
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In such circumstances, she directed the prosecution to proceed with calling the available witnesses, noting that the court may order the continuation of proceedings where closure is deemed premature or made in error.
"The primary objective here is substantive justice rather than technical acquittals," she added.
In dismissing the application, the court concluded that the attempt to withdraw the case was "misconceived, ill-advised and misleading."
Parties were granted 14 days to appeal the ruling. The case will now proceed with the prosecution expected to present its remaining witnesses as the trial resumes.
