The High Court has suspended the prosecution of former Law Society of Kenya president Eric Mutua over the controversial sale of Malili Ranch to the government at Sh1 billion.
As a result, the Anti-Corruption Court has deferred Mr Mutua’s plea-taking until his petition against the trial is heard and determined.
The land was sold to the Ministry of Information and Communications in 2011 fore development of Konza technology city.
Mr Mutua was expected to answer to charges of stealing and making a false document with intent to defraud.
According to the charge sheet, he is accused of stealing Sh553.8 million, being proceeds from the sale of 5,000 acres of land in Machakos County, to the government.
He is said to have committed the offence with accomplices in Nairobi and Machakos between June 25, 2009 and March 19, 2010.
The land registered as LR No.9918/3 was the property of Malili Ranch Limited, according to the charge sheet.
In the second count, the lawyer is accused of creating minutes of directors of Malili Ranch and claiming they were genuine resolutions passed by registered members of the company.
The document indicated that the members had replaced Peter Kanyi and Kilonzo Maweu as chairman and secretary, respectively.
According to the State, he committed the offence on November 28, 2009 at Makueni in Machakos and in Nairobi,l with accomplies and with the intention to commit fraud.
The complaint was lodged by Malili shareholders.
Upon learning of the impeding prosecution, Mr Mutua, through lawyer Wilfred Nyamu, rushed to the High Court complaining that the State was subjecting and exposing him to double jeopardy.
In a petition filed before Justice Weldon Korir, he said his law firm acted for Malili Ranch in a transaction relating to sale of its land to the government.
While describing complaints by some members of the ranch as misguided, Mr Mutua said investigations were undertaken by police and officers from the Ethics and Anti-Corruption Commission (EACC).
The Director of Public Prosecutions then appointed Senior Counsel Paul Muite to evaluate the available evidence and make appropriate finding and recommendations.
Mr Muite recommended that Mr Mutua be made a prosecution witness in the trial of other persons were arrested and arraigned.
“The DPP cannot constitutionally refile from the decision it made unless circumstances and new evidence is available. By purporting to overturn its own decision, the DPP is in gross abuse of the legal process and the criminal justice system,” Mr Nyamu told the judge.
He added that the conduct of the DPP, in deciding to have Mr Mutua charged, put him in the danger of self-incrimination, thereby violating his right to a fair hearing.
“Mr Mutua cannot, in law, be both an accused person and a witness in the same matter. The respondents are bent on a scheme of harassment and intimidation against him,” the lawyer said.
In his affidavit, Mr Mutua said on February 2, 2009 that he received instructions from Malili Ranch, for his company, E.K. Mutua & Co Advocates, to act on its behalf following a tender the ministry advertised in the dailies.
The tender was for purchase of 3,000 acres of land.
He attached minutes of a board meeting that resolved to appoint his law firm and to sell the property.
He subsequently received a duly signed board of directors resolution on the sale of 5,000 acres of land of LR.No9918/3 or any other parcel owned by the company.
“Upon inquiry from my client, it produced copies of shareholders resolutions to sell the land, which were passed in meetings held on May 7, 2005 and January 5, 2009,” he stated.
On February 23, 2009 he got a letter from the Chief Procurement Officer in the ministry, indicating that the government would purchase 5,000 acres at a price of Sh200,000 per acre, making the total purchase price Sh1 billion.
In the petition, Mr Mutua says the government paid a deposit of Sh400 million on June 17, 2009 and cleared the balance of Sh600 million on January 11, 2010.
“It has been over 10 years since the transaction was completed. It is difficult to trace certain documents which would form part of my defence. I have also handed over some critical documents to the police when they were carrying out investigations,” he says in the petition.
On February 10, police officers from the Directorate of Criminal Investigations went to Mr Mutua's office and demanded that he accompany them to the headquarters of the Directorate of Criminal Investigations (DCI).
According to lawyer Nyamu, Mr Mutua’s duty was conveyancing in the sale of the land.
Justice Korir issued a temporary order restraining police and the DPP from arresting, detaining, charging or prosecuting Mr Mutua pending determination of the petition.
The application will be heard on February 18, 2020.
Earlier, former Machakos Senator Johnston Muthama and former Information and Communications Permanent Secretary Bitange Ndemo were charged with theft and abuse of office over the sale of the ranch.
Others charged were National Police Service Commission (NPSC) member Ronald Musengi, former Lands Commissioner Zablon Mabea, Malili director David Ndolo Ngilai, James Kituku, Leornard Kyania and Julius Mbau Nzyuko.