Former Sports Cabinet Secretary Rashid Echesa. [Robert Tomno, Standard] 

The Court of Appeal has halted a Sh39 billion fake arms deal case against former Sports Cabinet Secretary Rashid Echesa.

Echesa who is the chairman of Kenya Water Towers Agency is accused of allegedly defrauding two foreigners through a multi-billion-dollar contract to supply military equipment at Harambee Annex, which housed the office of the former Deputy President, now President William Ruto.

A decision rendered by a three-judge bench comprising Justices Patrick Kiage, Ali Aroni, and Lilian Achode suspended the High Court decision that overturned a lower court decision to acquit the former CS and ordered that he be placed on the defence.

"We do order that there will be a conservatory order and a stay of the High Court order made on February 26, 2024, that directed that the matter at the trial court do proceed to defence hearing pending the determination of the intended appeal," the appellant court judges directed.

While slamming brakes to further prosecution of Echesa, the judges concurred with his lawyers led by Kirathe Wandungi that the appeal raises some fundamental questions of law that need to be handled by the court.

"There is also a consensus on their papers that given the position taken by the High Court, the trial magistrate considers his hands tied in terms of what he has to do about the fate of Echesa should the defence hearing proceed," said the Judges.

The Court of Appeal issued stay orders after Echesa appealed the decision of High Court Judge Kanyi Kimondo to set aside the trial court ruling of December 2023 to clear him on the involvement in the multi-billion guns scandal.

In February, Justice Kimondo found that the Office of the Director of Public Prosecutions (ODPP) had built a strong case against the former CS and that the lower court should have found him with a case to answer, putting him on his defence rather than acquitting him.

"Accordingly, their acquittal on December 3, 2021, under section 210 of the Criminal Procedure Code on those six counts is hereby reversed and set aside," Justice Kimondo ruled.

The High Court ruling came after the DPP appealed the decision by Trial Magistrate Kenneth Cheriuyot to acquit Echesa and his co-accused Kennedy Mboya, Daniel Otieno Omondi alias General Juma, and Clifford Okoth, claiming that the state had failed to establish a prima facie case against them.

The DPP challenged the ruling by Cheruiyot, saying that it was made after working hours at 7:30pm, contravening the Judicature Act. The DPP argued that the judge was relying on extraneous matters, leading to the conclusion.

"The Republic contends that the evidence disclosed a prima facie case, particularly regarding the charges of conspiracy, which calls for a rebuttal from all five respondents. Therefore, the State prays that their acquittal be set aside and that they are placed on their defence," the prosecutor told the judge.

While discharging the former CS and his co-accused, the magistrate ruled that prosecutors failed to avail the key witnesses in the matter, including the two foreign complainants - Kozlowski Stanley Bruno, the Chief Executive Officer of the US-based ECO Advanced Technologies firm, and Mamdough Mostafa Lofty from Egypt.

"The evidence tabled in court has been considered, and I find that the first four accused persons have no case to answer. They are hereby acquitted," the magistrate ruled.

Echesa had been acquitted of impersonating a person employed in public service by falsely presenting himself as the personal assistant of President Ruto (then Deputy President) to two foreigners on February 13, 2020.

The magistrate blamed the prosecution for allowing the two foreign businessmen to leave the country without giving their evidence in the matter.

He also noted that according to the evidence tabled in court, including the CCTV footage from the Office of the Deputy President, it only shows Echesa's arrival with the two European men and his departure, and nothing more.

The court found that according to the evidence on record, the Deputy President was not aware of the visitors in his office at Harambee House Annex.

Echesa and his co-accused faced 15 counts of making false documents, conspiracy to commit a felony, obtaining money by pretences, and personation.