When the matter came up for further hearing before trial magistrate Eunice Nyutu on Thursday, the court noted that the prosecuting counsel failed to up in the case without explaining.
Nyutu blasted the prosecutors saying they are not only putting the court in a very embarrassing position but also the accused who sit in court with nothing happening to their case.
In the case, Sonko and 16 others faced economic crimes, abuse of office, unlawful acquisition of property and irregular payments that saw the county lose Sh356 million.
As a result of the failure by prosecution counsel Annette Wagia, defence lawyers Dr John Khaminwa and Assa Nyakundi applied to have the Sh356m graft case terminated under Section 24 of the Criminal Procedure Code (CPC) for the failure of the complainant to appear in court to tender evidence.
While declining to terminate the graft case, Nyutu said from the conduct of the prosecutors in the case it is clear they do not want to prosecute the case. They are abandoning it.
Nyutu declared that the conduct of the prosecuting counsel and the DPP is contemptuous.
She noted, “the prosecutor is the complainant in all the criminal hearings and when the prosecutor fails to turn up in court then there is no case against the accused persons”.
The magistrate directed her ruling be placed before the National Council of Administration of Justice for a dialogue over the prosecution of this case.
Nyutu also directed her ruling to be placed before the DPP Renson Igonga for action.
The magistrate said public prosecutors are required to conduct cases in a manner that promotes public interest and public good.
“Sabotaging and abandoning of cases by prosecutors must not be condoned and they should be held accountable,” the magistrate added.
She said it is unfortunate the prosecution has chosen to get an adjournment of the Sonko case through sheer arm twisting of the court.
However, she noted that the case is a public interest case and the sins of the prosecutor and the DPP cannot be visited on the Public to warrant the interference of justice.
She added that it was for these reasons I declined to dismiss the case for want of prosecution.
On November 8, 2023, the DPP through a deputy director Grace Murungi wrote to Magistrate Nyutu seeking to have the case adjourned to enable him to prosecute an application to have the Sh356m graft case against Sonko withdrawn under Section 87 (a) of the CPC.
Murungi stated in the letter that it would in essence save judicial time as some of the witnesses in the case would not be required to be called to testify in the case.
The case will be mentioned on November 15 to enable the DPP to give directions in the case.