Former Nairobi Governor, Evans Kidero, suffered a major blow after Anti-Corruption Court dismissed his application to have him tried separately from 10 other co-accused persons over the loss of Sh 213 million at City Hall.
In his ruling Chief Magistrate Douglas Ogoti dismissed Kidero’s application saying that the charges as preferred against him and his co- accused persons meet the threshold of the law in criminal pleadings, procedure, and practice.
‘There were no good reasons placed before me to enable me interfere with them. Hence no sufficient authority was given to discharge the applicants or any of the accused from this trial,” ruled Ogoti. He further said that separating the accused persons would be expensive, time-consuming and prejudicial to the witnesses who would be expected give evidence in all cases.
“Separating the count or charges will mean duplicating trials, causing a lot of prejudice and inconvenience to the witnesses who will have to come to court again and again,” ruled the magistrate.
He further noted: “Even if such joinder prejudiced the accused person, which is not the case, and on considering good case management, I find no good reason to sever the charges and order for separate trials.”
Ogoti concluded that in regard to Count One of conspiracy to commit an economic crime, the charge sheet was not defective, noting that each count contained one charge and Kidero could not possibly claim difficulty in understanding them.
The former governor is charged alongside former county secretary, Lilian Ndegwa, chief finance officer Jimmy Mutuku Kiamba, and finance and planning minister, Gregory Mwakanongo. Others charged are head of accounting, Stephen Ogago Osiro, acting chief finance officer, Luke Gatimu and acting head of treasury, Maurice Ochieng Okere, John Githua and Grace Njeri of Lodwar Wholesalers Ltd and Ngurumani Traders Ltd.
They have been accused of conspiracy to commit fraud, by authorising payment to various companies for services not rendered, leading to the loss of Sh213m at the county government between January 16, 2014, and January 25, 2016.
Kidero, through lawyers James Orengo and Tom Ojienda, had urged the court to issue orders for separate trial arguing that he was charged with an offence not known in law.He said the particulars, as set out in the First Count, do not disclose an offense and the offense of fraud is not defined in the Anti-Corruption Economic Crimes Act( ACECA), whereas the term corruption is defined.
The judge, however, highlighted Section 2 of the law, which defines corruption to mean bribery, fraud, abuse of office, embezzlement of funds and breach of trust. “In the absence of any definition of a term in the ACECA this court entitled to fall back to the meaning of the term fraud in the penal code or to the meaning of the said term under common law,” said Ogoti, adding that not defining the term ‘fraud’ on its own is not ground to dismiss a charge of corruption.
“The term fraud he said is well defined in our law and lack of its specific definition in ACECA cannot and does not vitiate a charge of corruption. It was the finding of the court that count 1 as framed disclosed a complete offence,” ruled Ogoti.
The DPP, through Joseph Riungu, had urged the court to dismiss Kidero’s application for his failure to demonstrated why he should be tried separately. He also added that all accused persons are equal before the law and Kidero is no exception.