The court has crossed out one of the graft charges facing former Nairobi Governor Evans Kidero.
According to a ruling made by the anti-corruption court, the former governor was exonerated after finding there were insufficient details of the alleged crime.
Chief magistrate Douglas Ogoti said the charge, in which Dr Kidero and Nyakach MP Aduma Owour are accused of conspiring to defraud the Nairobi County Government of Sh58 million, lacks clarity hence it violates the Constitution and the criminal procedure code.
Mr Aduma was previously acting director of legal affairs at the defunct City Council.
While upholding an objection raised by the duo, the magistrate stated that a charge must bring out clearly the wrongful deed that comprises the physical components of a crime.
This must also be coupled with demonstration of intention or knowledge of wrongdoing so as to establish criminal culpability.
“When the term “defraud” is used in the charge sheet, the fraudulent act must follow. What is the fraudulent act that the accused did to demonstrate or bring out the intention or knowledge of wrongdoing in order for the court to find him responsible for his fraudulent act?” wondered Mr Ogoti.
He stated that the prosecution ought to have indicated the fraudulent act done in relation to the Sh58 million.
“The charge as framed did not bring out the fraudulent act as required by law,” added the magistrate.
He premised his ruling on Article 50(2)(b) of the Constitution which requires charges levelled against an accused person to contain sufficient material to enable the accused answer to the charge and prepare for the defence.
The magistrate further found that the charge sheet dated January 16, 2020 was not properly on record. The charge was filed when the graft case had commenced, prompting a protest by the defence which argued that it amounted to a fresh charge and an abuse of court process.
The prosecution responded by saying that it intended to make an application for amendment of the charge but former governor Dr Kidero and Mr Awour obtained a stay order on January 20, 2020 when the state was to apply for the ammendment.
Mr Ogoti noted that the explanation by the prosecution was also an admission that the charge sheet was not properly on record.
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