A prosecution witness who was set to testify against three leaders of the Presbyterian Church of East Africa (PCEA) facing charges of conspiring to steal 50.9 million shillings from the church failed to show up in court again for health reasons
Senior state counsel Mr. Donnex Ongira applied for adjourned to a later date when the key witness will be of sound health to testify against the trio.
David Riitho Gathanju, James Muiruri Njane and Peter Mwangi Kamuthu are facing two counts theft that on diverse dates between 2nd January 2016 and 30th June 2017 at the church head office in South C estate of Nairobi county, they conspired to commit a felony, namely stealing from the (PCEA) head office.
The trio face a second count that on the same dates and scene, being servants of the PCEA church, they jointly stole 50.9 million shillings, the property of the said church which came into their possession by virtue of their employment.
They denied the charges 18th October 2017 even after efforts to settle the matter out of court proved futile
The magistrate however expressed concern that the prosecution was taking the court in circles after they applied numerous application for adjournment .
“You cannot just come to tell the court that we adjourn the case because one witness is sick. Where is the other one as we had scheduled to get evidence from 2 witnesses? ” she retorted.
The prosecution promised to avail the witnesses during the next hearing set for February 2nd 2021.
As at now, only one prosecution witness, Jane Mwihaki, the church accountant testified in 2019. The court rejected an application by the prosecution to withdraw the case under section 87 (a) of the criminal procedure code in September last year.
In her ruling, Kiambu Chief magistrate Ms. Atambo ruled that “The matter was of great public interest” While dismissing the application, she noted that in exercising discretion, the court should be concerned whether the prosecution acted beyond its constitutional powers. If that test is passed, it would not be the business of the court to control the prosecutor acting in accordance with his constitutional role and enabling the provision of the code, she said.
She however, noted that it was the court’s business to control the prosecution when the prosecutor acts improperly not in the interest of justice, acts beyond his powers vested by the constitution on carrying out some arbitrary objective under the guise of discharging the function of the office of the Prosecutor.
During today’s proceedings, the court also learnt that Mr. Dunstan Omari for the third accused was also not in court. John Njuguna is representing the 1st accused while James Kangahi is representing the third accused who are all out on bond.
Lydia Shiloya
