High court overturns order by a magistrate

A judge has released a businessman after he successfully appealed against a ruling by a magistrate who had declined to acquit him the following withdrawal of a criminal case by the prosecutor.

Justice Hedwig Ong’udi ruled that it was wrong for Kilungu Senior Resident Magistrate E Muiru to insist on proceeding with the case against businessman George Otolo even after the Director of Public Prosecutions applied to terminate the case for lack of evidence.

“I find it strange that the magistrate declined to acquit the accused. She went beyond her mandate in a case where the prosecutor had discovered new evidence to justify the acquittal,” ruled Ong’udi.

Car hire

Otolo, a trader who runs a car hire, was mistakenly charged with trafficking narcotics after one of his cars he had hired out to two people was found transporting bhang in July 2018. The two men who hired the car, Nichanor Radolo and Collins Otieno, were arrested in Makueni with 413 kilogrammes of cannabis (bhang) worth Sh2 million in the vehicle.

Investigators discovered the vehicle was registered in Otolo’s name and summoned him. But despite the explanation and evidence that he only hired out the car without knowing the intention of the two men, he was also arrested and charged.

In August, State prosecutor Mark Wangia informed the court that they had realised after reviewing the file that the trader was an innocent victim. According to the prosecutor, there was a car hire agreement and Mpesa statements and receipts to confirm Otolo had hired out the car.

But the magistrate declined to set the businessman free, ruling that the prosecution had not convinced the court why it was withdrawing the case.

The trader then challenged the magistrate’s decision before Justice Ong’udi who agreed that it would be illogical for the case to proceed when the prosecutor was honest in its analysis.

Justice Ong’udi added that there is no time limit as to when or at what stage the DPP may discontinue a case as long as new evidence point to a mistrial.