Day Appeal Court saved banker Githunguri from State

The Office of the Director of Public Prosecutions is in the eye of a storm. Its director, Noordin Haji has gained notoriety for withdrawing cases against some prominent people who had complained of political prosecution.

Haji's woes however pale in comparison to one his predecessors, Benard Chunga, when he found himself at the crosshairs of the Court of Appeal after he attempted to revive criminal charges against prominent banker, Stanely Munga Githunguri, 36 years ago.

Sometime between 1976 and 1979, Githunguri who was a banker committed 20 offenses some touching on foreign currency regulations. Apparently, he struck a deal with the Attorney General, Charles Njonjo and was not charged. Njenga Karume in his autobiography wrote how he pleaded with Njonjo to intervene. In 1980, the Attorney General ordered that the foreign currency which Githunguri was accused of getting illegally be credited in Kenya currency into his bank account.

However, in 1984, after Njonjo fell from grace, Githunguri was arraigned in court. He objected, triggering a long legal battler that ended in the Court of Appeal.

The Appeal Court comprising of Chief Justice CB Madan, DK Aganyanya and Evans Gicheru said the proceedings from Githunguri's application had put the Constitution on the anvil and would be a milestone in the legal history.

"The delay is so inordinate as to make the non-action for four years inexcusable in particular because this was not a case of no significance, and the file of the case must always have been available in the Chambers of the Attorney General. It was a case which had received notable publicity, and the matter was considered important enough to be raised in the National Assembly."

According to the judges, the case was not a battle between the State's powers to prosecute a criminal but was a test as to whether a court could stop the State from abusing the court process by pressing oppressive and vexatious charges.

"We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute... it can in no way be said that the hearing of the case by the Court will be within a reasonable time."

After chastising Chunga, the court said, "Stanley Munga Githunguri! You have been beseeching the Court for Order of Prohibition. This court gives it to you. When you leave here raise your eyes up unto the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya."