DCI On The Spot For ‘Refusing’ to Prosecute Suspects in Trespass Case

BY MWANAHABARI REPORTER

The office of the Director of Criminal Investigations (DCI) is on the spot over its delay to execute arrest and prosecution of four suspects in a high voltage trespass case involving a piece of land in Nairobi.

The owner of the land – a widow in Nairobi – is still painfully waiting for the wheels of justice to grind several months after moving to court to have the trespassers prosecuted.

The widow, Jennifer Wambua, whose company Greenview Lodge Limited, was allocated the parcel of land known as Land Reference No. 209/3850 situate along Processional Way, Nairobi, by the Government of Kenya on 13th March, 1986 by way of letter of allotment – feels she is being denied justice – intentionally by certain individuals who had unsuccessfully tried to grab her piece of land.

That title to the said property, according to a letter seen by Mwanahabari.co.ke, was issued to the said company on 5th March, 2020.

Arrested for trespass

According to court documents, four individuals namely John Okoth Oiyo, Peter Ouma, Patrick Suju and Wycliff Ochieng were arrested on April 9, 2021 at around 15:30pm, along professional way, within Nairobi County, jointly without reasonable for trespassing into land belonging to Green View Lodge with intention to carry out curing activities without authority.

The matter was subsequently filed at the Chief Magistrate’s court at the Milimani Law Courts, Nairobi – under criminal case number NO. E500 of 2021.

The four accused persons entered a plea of not guilty prompting the matter to be fixed for pre-trial – with the DCI investigating that matter.

As captured in the ruling by the magistrate court – the Director of Criminal Investigations through Chief Inspector Patrick Maloba made an application asking that the case be withdrawn pending completion of the investigations – especially having roped in the office of the Director of Public Prosecution (DPP).

18 months after the ruling

The office of the DCI is said to have received recommendations from the DPP office allowing for the immediate arrest and prosecution of the four accused – a directive the DCI is yet to execute 18 months after the ruling.

Githinji Mwangi & Associates Advocates, representing Green View Lodge, put a spirited fight arguing that the DPP was an independent office body and not under subject of any other authority in execution of his duties.

In their argument, the lawyers faulted the DCI – and specifically submitted that the DCI had no powers to direct the DPP to withdraw a matter from court and asked the court to dismiss the request and direct that the matter proceed as scheduled.

Further, it was argued that the DCI’s position seeking to have the case withdrawn is untenable in law as it is ultra vires to their legal mandate. That the control and the conduct of any prosecution outside   private and donated prosecution rests with the Director of Public Prosecution.

The application was dismissed

In its final ruling, the magistrate said: “The DCI cannot purport to withdraw a matter before court without the Consent of the DPP. In conclusion… the DCI cannot on its own have a matter withdrawn without the consent of the DPP as the latter is entity in law with the power to conduct and consent prosecution. The application…is therefore dismissed.

Of concern, however, is the fact that the suspects have continued to roam freely even after the office of the DPP determined that the had a case to answer. It’s been 18 months… and still counting.

 

 

 

 

 

 

 

 

 

 

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