By Fredrick Odiero
One of the oldest cases at the Kisumu Law Courts draws to a close with a former magistrate and his accomplice who is a former public officer finding themselves on the wrong side of the law.
Former principal magistrate Abdul Elkindy and the public officer, Moses Osewe have a case to answer and were placed on the defence on three accounts as a Kisumu Ethics and Anti Corruption Court acquitted six other accused in the Sh2.3 billion Miwani Sugar Company land fraud case.
The two were acquitted on other three charges that include conspiracy to commit fraud and fraudulent disposal of public property, acquisition of public property and forgery.
The other accused are director of Crossley Holdings Ltd Ian Mawa, Philips Katiba, Kefa Lumumba, Kibos Sugar Company chairman Sukhwinder Singh, Epainto Apono and Crossley Holdings Ltd were acquitted of all the six charges against them.
The former magistrate and seven others were charged with conspiracy to defraud the miller of 9.3 acres between 2007 and 2008. They denied any wrongdoing in the case that has been going on for the last nine years.
However, in his ruling, chief magistrate Julius Ng’arng’ar noted that the prosecution in the case had established a prime facie case in relation to the 3rd, 5th and 6th accounts against Elkindy and Osewe.
The charges include willful neglect of official duty by the public officer (Osewe), abuse of office contrary to sections of the anti corruption and economic crime (Elkindy) and abuse of office contrary to sections as read with sections of the penal code.
On the forgery count, the magistrate said that the evidence of a document examiner would have been critical in establishing whether the document was a forgery or not.
“The investigative officer told the court that he did not subject the document to the government examiner for examination to find out whether it was forged,” he stated.
Ngar’ngar’ attributed the collapse of 1st, 2nd and 4th counts to shoddy investigations by the prosecution. The investigating officer failed to cover very obvious and crucial aspects that could have proved the charges.
He noted that the prosecution failed to tender evidence to demonstrate that Miwani Sugar Company (1989) in receivership was a public limited company. This, he said, would have been easily proved by presenting a certificate of incorporation, which was never produced.
“From the evidence presented by the prosecution, the assertion was that the land in question was never registered to Miwani Sugar Company (1989) Limited in receivership as the evidence of prosecution witness Steven Kipngetich”.
The company secretary, Rosemary Akoth, also gave the same evidence that during her tenure, she did not see any inventory.
He at the same time noted that the prosecution failed to demonstrate the role played by the directors of Crossley Holdings Ltd
Ngar’ngar’ noted that the 2nd and 6th accused status was not established. He stated that the investigations officer Stanley Mwiriti admitted that the 6th accused was not a director of Crossley Holdings Limited. He went further to state that he didn’t know why the 6th person was charged.
The prosecution failed to demonstrate the role played by the directors of Crossley Holdings Ltd. No nexus was created between the 6th and 9th accused.
He ruled that the evidence presented was not enough to sustain convictions for the accused even if the accused persons failed to offer any defence.
He acquitted all the accused persons of the first count which was conspiracy to defraud under section 317 of the penal code.
The case had a total of 30 witnesses of which all never testified as others passed on according to the magistrate.