Politician Cyrus Jirongo can finally breathe easy following the termination of a Sh50 million land fraud case after three decades of court battles.
The former Lugari MP had been accused of defrauding a company associated with the family of former President Daniel arap Moi in an upmarket district of the city 30 years ago.
Milimani chief magistrate Francis Andayi discharged Mr Jirongo after being presented with a Supreme Court order that quashed the prosecution of the former Youth for Kanu’1992 treasurer.
Mr Andayi said a five-judge bench of the apex court had barred the Director of Public Prosecutions and the chief magistrate’s court from proceeding with the trial.
“An order presented to this court by lawyer Danstan Omari for Jirongo from the Supreme Court prohibits the prosecution of the accused,” ruled Mr Andayi.
He said it would amount to contempt of court if he proceeded with the case yet the top judges had declared it unconstitutional. “You are hereby discharged pursuant to the Supreme Courts’ Order,” Mr Andayi said, adding that the cash bail Mr Jirongo had deposited be returned to him.
The Supreme Court quashed the forgery charges, citing delays in his prosecution since the process commenced 30 years ago after the alleged offence was committed.
Mr Omari had moved to the apex court in 2019 to challenge a Court of Appeal ruling that had set aside Justice George Odunga’s orders declaring the trial a nullity.
“It’s therefore our finding and in agreement with the learned judge of the High Court (Odunga) that the prosecution of Jirongo is in breach of his right to a fair trial as protected by Article 25(C) as read with Article 50 of the Constitution,” the Supreme Court judges determined.
Presided by Deputy Chief Justice Philomena Mwilu, they faulted the appellate court for setting aside Justice Odunga’s orders.
“The learned judge of the High Court, in our view, was well within his mandate under Article 165(3)(d)(ii) as read with Article 157(11) of the Constitution to curtail the appellant’s prosecution and the DPP’s powers have not in any way been interfered with, outside the constitutional mandate conferred on the High Court,” the judges held.
It was the court’s view that a prosecution was being mounted to aid proof of matters pending before a civil court or Jirongo being charged to compromise pending civil proceedings.
They also said the former MP’s business partners, who are complainants in the case, should have waited for the civil case to conclude before going towards criminal proceedings 30 years later.
“It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book.”
Unreasonable delay
The judges said the Constitution expects that in resolution of disputes, fairness must include promptness of action and inhibition against unreasonable delay.
They refuted claims that the case was of public interest, saying: “What is in issue is a dispute arising from a commercial transaction, where the complainants have not denied receiving part payment of the purchase price. There is hardly any public interest element in such a transaction save the wide interest of the law to apprehend criminals.”
The dispute arose three decades ago when Mr Jirongo entered a land sale agreement with his former business partners, Sammy Kogo and Antoinnette Boit, worth Sh20 million.
The disputed land in Upper Hill was registered under the name Soy Development Ltd and Mr Jirongo is said to have paid Sh10 million for the property. The papers were released to him.
Mr Jirongo later that year used the land to secure a Sh30 million loan from a bank and after he settled it in 1992, secured another of Sh50 million.
The dispute arose in 2015 when his former business partners alleged that as a director of SDL, he executed a charge on the land, which he used to secure an overdraft facility for his company Cyperr Projects International Ltd.
They also claimed that the charge documents used by Mr Jirongo to charge the property had been fraudulently executed and upon investigations, it had been revealed that their signatures had been forged.
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