A Magistrates court has allowed an application by the Director of Public Prosecutions (DPP) Renson Ingonga to withdraw the Sh7.6B graft case facing oil tycoon Yagnesh Devani.
This comes after former Energy Minister Kiraitu Murungi expressed reluctance to testify in the case.
Murungi was listed as a crucial witness, according to the ruling by the court.
Magistrate Harrison Barasa said the DPP and EACC can’t be forced to proceed with the case especially after key witnesses became uncooperative and unwilling to testify
The DPP through Senior prosecution Counsel Elphas Ombati had on October 9 made an oral application to terminate the case.
But the Magistrate in observing that the case is of great public interest directed an affidavit be filed in court before he could make a determination on the matter.
The affidavit was filed and the DPP highlighted a number of reasons why they sought the withdrawal of the case.
Among them was the death of some of the witnesses, and Kiraitu being reluctant to testify.
The DPP further stated that efforts to trace the main complainant – Emirates boss – were futile and the only information available is that he relocated to Singapore.
The magistrate said that from the affidavit the EACC which was the investigative agency in the case was duly consulted in regards to the withdrawal application.
The court took into consideration submissions made by the DPP in that they do not have sufficient evidence to sustain the case.
He also cited Article 157(8) of the constitution which provides that the DPP will have regard to the public interest and interest of administration of justice and the need to prevent and avoid abuse of the legal process.
Barasa subsequently allowed their application under section 87(a) of the CPC which means Devani may still be prosecuted in the future if sufficient evidence is made available.
"At this juncture, it would be preposterous for this court to proceed. We will be forcing the agencies to proceed with a case even when they have made it clear that upon evaluation they don't have sufficient evidence to sustain it," said Barasa.In closing, the Magistrate said he found no compelling reason to withdraw the matter.
"I allow the application and proceed to discharge the accused person under section 87a of the criminal procedure code," he said.
