Court awards ex-Judiciary finance boss, two others Sh21m over malicious prosecution

The Judiciary’s former Director of Finance and two others have been awarded Sh21 million after the High Court found that their eight-year prosecution over an Sh80 million fraud was malicious and their detention unlawful. 

In a judgment delivered by Justice Asenath Ongeri of the High Court at Milimani, found that former Judiciary Director of Finance Benedict Abonyo Omollo, together with Boru Guyo Mole and Joab Ooko, all former employees in the Judiciary's Accounts Department, were unlawfully arrested and maliciously prosecuted by the Director of Public Prosecutions and the Attorney General over the theft of Sh80,013,302 from the Judiciary's coffers in 2013.

The three were arrested on September 19, 2013, by officers from the Banking Fraud Investigation Unit and charged four days later, on September 23, 2013, in City Court with an offence of conspiracy to commit a felony.

Justice Ongeri ruled that the decision to charge the trio was made in haste and before investigators had gathered crucial evidence needed to establish their involvement in the fraud.

They were acquitted of all charges on January 10, 2020, after a trial lasting close to seven years, prompting them to file three separate civil suits, later consolidated, seeking damages for malicious prosecution and unlawful detention.

In her judgment, Justice Ongeri ruled that the decision to charge the trio was made in haste and before investigators had gathered the necessary evidence.

The judge said the prosecution proceeded despite evidence showing that Omollo was the person who first detected and reported the fraudulent transactions.

“The defendants ignored this communication and, in the circumstances, this court finds that the decision to prosecute was not based on a full conviction founded on reasonable grounds, but rather was taken in haste, before the necessary investigative reports were available,” Justice Ongeri ruled.

According to the judgment, Omollo detected the irregular payments around September 13, 2013, after noticing that several transactions from Judiciary accounts had not been authorised by him or his office.

He declined to approve a further payment and discovered that additional fictitious transactions had already been processed without his knowledge.

He subsequently moved to stop further payments, sought to recover funds already disbursed and reported the matter to investigative agencies, including the Banking Fraud Investigation Unit.

However, despite initiating the investigations, Omollo later learnt that he was also being targeted for arrest over the same fraud he had reported.

Justice Ongeri noted that the investigating officer, DW1 Michael Kirwa Melly, conceded in his testimony that the decision to charge the three on September 23, 2013 was premature, and that a crucial forensic report from the Central Bank was only received five days after the charges were filed.

Crucially, the judge found that the Judicial Service Commission, the plaintiffs' employer, had explicitly resolved on September 20, 2013 that no arrested staff should be charged until investigations were concluded, a directive the prosecution ignored.

"The defendants ignored this communication and, in the circumstances, this court finds that the decision to prosecute was not based on a full conviction founded on reasonable grounds, but rather was taken in haste, before the necessary investigative reports were available," the judge ruled.

The court further pointed to subsequent forensic audits by Vivium Consultants and the Directorate of Criminal Investigations' own Cyber Crime Unit, which established that the Judiciary's computer systems had been hacked and staff login credentials harvested by fraudsters, undermining the very basis on which the trio had been charged.

Despite this exculpatory evidence, prosecutors pressed on and even amended the charge sheet in 2015, a persistence the court said pointed to an improper motive.

"This persistence in the face of evidence that undermined the basis for the charge is a strong indicator of a lack of reasonable and probable cause,"   the judge ruled, adding that this constitutes malice

The judge also faulted the prosecution for selectivity, noting that other Judiciary staff whose credentials were implicated in the fraud, including Grace Macharia, Wyclif Wanga and Kamao J., were not charged.

Justice Ongeri said the decision to continue prosecuting the three despite evidence that undermined the charges was evidence of malice.

“This persistence in the face of evidence that undermined the basis for the charge is a strong indicator of a lack of reasonable and probable cause,” the judge ruled.

The judge further faulted the prosecution for selective prosecution, noting that other Judiciary employees whose names appeared in the same audit trails, including Grace Macharia, Wyclif Wanga and Kamao J., were not charged.

The investigating officer, the court observed, could not provide a lawful explanation for why the three were not prosecuted.

On unlawful detention, Justice Ongeri found that the three had been held beyond the constitutionally prescribed 24 hours before being taken to court, contrary to Article 49(1)(f) of the Constitution, a fact the state did not dispute.

However, the Director of Public Prosecutions had argued that the prosecution was a bona fide exercise of its constitutional mandate under Article 157, driven by the need to recover stolen public funds, of which Sh60 million was eventually clawed back.

But the court rejected this defence, ruling that the DPP"cannot hide behind the DPP's constitutional independence when the prosecution was initiated and perpetuated based on incomplete and subsequently discredited investigations by their agents.

In her final orders, Justice Ongeri declared the prosecution malicious and the detention unlawful, awarding each plaintiff Sh2,500,000 for unlawful arrest and detention and Sh2,000,000 for malicious prosecution.

Mole was additionally awarded Sh355,450 in proven special damages for legal fees and transport expenses.

The general damages will attract interest from the date of judgment, while Mole's special damages will attract interest from May 10, 2022, when he was acquitted.