By Andrew Kariuki
The Director of Public Prosecutions (DPP) has applied to withdraw charges against three directors of Kenya Hospital Association Limited, the entity that operates Nairobi Hospital, in a move that has drawn strong opposition from defence lawyers.
Through prosecution counsel Nora Otieno, the DPP told the court that it was seeking to withdraw the charges under Section 87(a) of the Criminal Procedure Code to allow for further review of the case.
“We have made a request to review the charges further,” the prosecution submitted, indicating that the application was intended to facilitate a re-evaluation of the matter.
The charges had been brought against Barclay Mogere Onyambu, Magdalene Koki Muthoka and John Nyiro Mwero, who were accused of failing to lodge the company’s financial statements with the Registrar of Companies as required under the Companies Act.
In the first count, all three were accused of failing to submit financial statements for the year 2024 by December 31, 2024. Muthoka faced two additional counts for allegedly failing to file returns for the years 2023 and 2022.
However, the application to withdraw the charges was opposed by defence counsel, who questioned both the timing and the legal basis of the prosecution’s move.
Senior Counsel James Orengo argued that while the prosecution has the power to withdraw charges, doing so under Section 87(a) would leave the accused persons exposed to future prosecution on the same facts.
“Yes, you can withdraw, but not under Section 87(a). The accused should not have charges hanging over their heads,” Orengo told the court, urging that the case be terminated in a manner that would bar re-prosecution.
Charles Kajama, who also appeared for the defence, opposed the application, arguing that the suspects had a right to be formally presented before the court.
“The accused persons have a right to be brought to court. The suspects outside in the parking lot have a right to be produced in court,” he said.
Kajama further criticised the prosecution for seeking to withdraw the charges without providing sufficient explanation and urged the court to consider releasing the suspects under Section 202 of the Criminal Procedure Code.
Embakasi East MP Babu Owino also weighed in on the matter, criticising the prosecution’s handling of the case so far.
“If the state is bringing a charge then wants to withdraw the charge, then we need to change the DPP since there is no work they are doing in the office other than misuse of public resources,” he said.
He further alleged that the arrests of the accused was conducted in a dramatic, “like a movie” way, in the presence of family members and media.
Principal Magistrate Paul Mutai allowed the prosecution’s application and ordered the withdrawal of the case under Section 87(a) of the Criminal Procedure Code.
