A family in Nakuru has moved a step forward in their bid to compel the Office of Directorate of Public Prosecutions (ODPP) to charge 13 people they accused of grabbing their 70 acres worth about Sh140 million.
The family of the late Joseph Gaitho Mwago has convinced Justice Jairus Ngaah that it has good grounds to file a substantive judicial review case against ODPP’s move to pull back from earlier resolve to prosecute 13 alleged land grabbers.
The ODPP had ordered investigations into the matter and agreed to prosecute the suspects, but rescinded its decision on grounds that the owner of the disputed property who filed the complaint had died.
Gaitho died on January 2, this year, aged 75, according to what his family described as stress-related heart attack.
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According to the ODPP, Gaitho’s family had failed to inform the office of this development, triggering the decision reversing earlier directions that the suspects be charged for carving out 70 acres from his land, which they later subdivided and obtained title deeds.
In convincing the judge, the family had attached a letter by ODPP dated February 3, 2020, addressed to the DCI Bahati following a complaint by Gaitho’s relatives that investigations into their land case was taking too long.
The letter, signed by Daniel Kariuki, Senior Assistant Director of Public Prosecutions reads in part:
“Forwarded herewith find a copy of a complaint letter to this office dated February 3, 2020, from Muthanwa and Company Advocates who are acting on behalf of the beneficiaries of the estate of the deceased, complaining about theft of 12 parcels of land which belonged to their deceased father.”
Sometimes in 2017, Gaitho started the process of subdividing his land. Trouble started when Gaitho learnt that some 13 duplicate title deeds had been processed for the same land, prompting him to report the matter to the DCI.
On February 27, this year, Gaitho’s family was somehow relieved after the DPP wrote a letter to the Rift Valley Regional Directorate of Criminal investigations recommending the arrest of the 13 people.
In the letter, Kariuki wrote thus: ”After carefully perusing the entire file, I note the complaint by Joseph Gaitho Mwago that his portion of land has been grabbed was thoroughly investigated and I concur with your findings that the evidence on record implicates the suspects listed hereunder with several offences.”
He had directed that Francis Kamau Njuguna and Joseph Nyamamba be jointly charged with conspiring to defraud. Others were Peter Gachoka Kuria, Herbert Musimba, Miriam Said, Simon Wanyoike, Ruth Wanjiru, Samuel Gichanga, Gerald Mwaniki, Ruth Muthoni, Benjamin Kinara and Harriet Wanjiku.
Papers filed by the administrators of Gaitho’s estate, John Mwago and Michael Muchiri, indicate the decision to charge the suspects was rescinded through a letter dated March 23, 2020.
According to Mwago’s affidavit, the family learnt about the orders to stall the prosecution in November, seven months after the directions given in March. The discovery was after their lawyer Kamau Muthanwa visited the Nakuru ODPP and was shown the letter.
“The said information (on Gaitho’s death) had not been disclosed in the file we gave the directions dated February 27, 2020. The DPP has therefore, in this regard, directed that the said directions given to arrest suspects in the matter shall not be implemented,” read the letter addressed to regional DCI, Rift Valley.
Lawyer Paul Nyamondi, who is representing the family in the application filed earlier this month, avers that the decision by the DPP to cease prosecution was wrong and the new development was never communicated to the family.
“The parcels of land stolen by the interested parties and the subject matter of the investigations are at a great risk of being transferred to third parties to put them out of reach of the applicants and this can happen any time,“ the lawyer avers.
Besides, they argue that the continued failure to prosecute the suspects amounts to shielding thieves and promotion of impunity.
After considering the arguments, Ngaah said in his ruling that ”I am persuaded that the applicants bid for leave to file substantive motion for certain judicial review orders is merited, according leave is hereby granted for the applicants to file the application.”
In the main application, the family will be seeking to compel the ODPP to cause the arrest of the suspects and to institute and maintain to their logical conclusion the criminal proceedings against them in terms of the directions given in the letters of February 27, 2020.
Ngaah further directed that the DPP and the suspects (respondents) file their response in seven days, adding that the substantive motion would be heard in the presence of all the parties on February 10, next year.