Sonko's acquittal in Sh20m graft case overturned, retrial ordered

Former Nairobi Governor Mike Sonko and co-accused Antony Ombok Jamal will face a retrial in a Sh20 million corruption case, after the High Court overturned their acquittal.

Justice Nixon Sifuna of the Anti-Corruption High Court found that trial magistrate Douglas Ogoti made a serious error by relying on an outdated charge sheet when dismissing the case against Sonko and the businessman.

“The ruling delivered by the magistrate on December 21, 2022, in Acc no 1/2020, which found that there was no case to answer, is hereby set aside. Consequently, the acquittal of the accused persons is also set aside,” Justice Sifuna ruled.

It is alleged that Sonko and Jamal, the director of ROG Security Limited, conspired to extort Sh20 million from Web Tribe Limited as an inducement to facilitate payments to Nairobi County in connection with a revenue contract in 2019.

The accused were initially acquitted by Magistrate Ogoti, who dismissed the charges on the grounds that they were defective and that the prosecution had failed to prove its case.

Magistrate Ogoti had based his ruling on a charge sheet filed in January 2020, without considering the amended charge sheet filed in September 2020, which included additional charges. This oversight led to the acquittal of Sonko and Jamal, who were charged with corruption related to a revenue tender at City Hall.

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Justice Sifuna, in his judgment, highlighted that Magistrate Ogoti had erred by failing to consider the amended charge sheet filed on September 7, 2020.

According to the judge, this new charge sheet replaced the original one and included additional counts and charges, which should have formed the basis for the case. “The magistrate had relied on the original charge sheet filed on January 27, 2020, which, according to the prosecution, had been superseded by an amended charge sheet filed on September 7, 2020,” Justice Sifuna stated.

The judge emphasized that using the outdated charge sheet was a critical mistake, as it had been replaced by the new charge sheet, which contained fresh counts and charges.

“Using the wrong charge sheet is akin to using the wrong question paper to mark examination answers,” he remarked, underlining the seriousness of the error.

Consequently, Justice Sifuna directed that the case be retried by a different magistrate within 30 days, and the new trial will begin with a fresh ruling under Section 210 of the Criminal Procedure Code, based on the evidence already presented by 19 prosecution witnesses.

The judge also declined Sonko’s lawyer, John Khaminwa’s, request to stay the execution of the judgment pending an appeal at the Court of Appeal.

The decision comes after the Director of Public Prosecutions (DPP) appealed the acquittal, arguing that Magistrate Ogoti had misdirected himself by disregarding the amended charge sheet.

The DPP argued that the trial magistrate had wrongly concluded that the charge sheet was defective, even though the amended charge sheet had already been admitted into evidence in September 2020.

“The trial magistrate erred in fact and law by misapplying the law by holding that there was a defective charge sheet, whilst he had already admitted the amended charge sheet into evidence,” the DPP argued in its appeal.

Sonko, who served as Nairobi governor from 2017 to 2020, was charged alongside Jamal with conspiring to commit corruption in relation to the 2019 revenue collection tender between the Nairobi County Government and Web Tribe Limited, a company involved in the supply, implementation, and maintenance of an electronic revenue collection system.

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