Court allows DPP to challenge Pattni’s acquittal over Goldenberg

Director of Public Prosecution Keriako Tobiko. PHOTO | PAUL WAWERU |

What you need to know:

  • A three-judge bench dismissed an application by Mr Pattni to strike out the appeal on the grounds that it was filed out of time.

The Court of Appeal has allowed the Director of Public Prosecutions (DPP) to challenge the acquittal of businessman Kamlesh Pattni over the Sh5.8 billion Goldenberg scandal.

A three-judge bench dismissed an application by Mr Pattni to strike out the appeal on the grounds that it was filed out of time. But the judges said in rendering justice, the courts are inclined to consider substantive rights against technicalities.

“On our own volition and so as to do justice, we decline the invitation by Mr Pattni to strike out the appeal on account of one day lateness in serving the notice of appeal,” said the judges.

Justices GBM Kariuki, Patrick Kiage and Philomena Mwilu said in exercise of “our discretionary power, we deem the notice of appeal to have been duly served on Mr Pattni on April 16, 2013 and thus effectively enlarge time for service by one day”.

Through lawyer Stephen Mwenesi, the businessman argued that the appeal was incompetent and of no legal effect because he was served out of time. He said the rule required the notice of appeal to be served within seven days of filing the notice.

Mr Mwenesi said there could be no proper basis for prosecuting Mr Pattni since the Bosire Commission of Inquiry report that formed the basis for his prosecution was flawed.

However, the DPP, through Mr Mungai Warui, argued that the appeal was duly filed and served and dismissed an allegation by Mr Pattni that no investigations were conducted after the Bosire report was trashed.

The DPP urged the court to give the parties an opportunity to discuss their respective cases during the hearing of the appeal.

In their ruling, the judges noted that the DPP tried to serve Mr Pattni for two days but was frustrated. They said a party that frustrates another from complying with timelines could not be heard to complain that timelines were not met:

“It is clear that the process server tried to serve the record of appeal on Mr Pattni’s advocate immediately after filing it but he (Mr Pattni) frustrated his efforts”.