Advocate Mwale, three others lose appeal against DPP

COURT of Appeal has rejected an appeal by four petitioners, challenging the Director of Public Prosecutions’ (DPP) decision to drop the 40bn/- fraud and money laundering trial they were facing.

Justices Mbarouk Mbarouk, Stella Mugasha and Jacobs Mwambegele ruled in favour of the DPP, upholding one ground of objection that the notice of appeal was fatally defective for failure by the four appellants, including Arusha-based Advocate Median Mwale, to state the nature of the decision against which the appeal was desired.

In the appeal, the appellants who have been in remand for about six years now were opposing the DPP’s “Nolle Prosequi” certificate to discontinue their trial before the High Court in Arusha.

However, referring the notice of appeal, a legal document, which initiate the appeal in criminal matters, the justices pointed out that the petition was against the nolle prosequi entered by the DPP, as respondent, which was not the case.

“Various decisions of this court have spelled out that failure to state the nature of the decision or finding or order of the High Court sought to be appealed against in the notice of appeal renders the purported appeal incompetent,” they ruled.

The justices said that as per Rule 68 (2) of the Court of Appeal Rules, it is mandatory for every notice of appeal to state briefly the nature of acquittal, conviction, sentence, order or finding against which the appeal is desired and where such aspects or any of them are missing the notice will be fatally defective.

The justices said they were increasingly of the view that stating an incorrect nature of the findings or order of the High Court sought to be appealed against in the notice of appeal has the same effect just like failure to state the nature of the decision desired to be appealed against.

“Since Rule 68 (2) of the Rules is an imperative provision, the nature of finding desired to be appealed against must be stated in the notice of appeal, hence failure to do so as appeared in the present matter renders the notice of appeal defective and appeal incompetent.

The appeal is struck out,” they declared. Apart from Mwale, who runs the JJ Mwale Advocates firm, other appellants in the appeal of its own kind are Boniface Thomas, an employee of CRDB Bank Plc Mapato Branch in Arusha, Nairobi businessman Don Bosco Gichana alias Bob James Onderi and Elias Ndejembi.

They had advanced three grounds to fault the High Court ruling that allowed the DPP to earlier drop the charges against them and later being re-arrested by the police on the same day and subsequently recharged with 44 counts of forgery and money laundering, among others.

The appellants further stated that the decision to uphold the October 31, 2017 Nolle Proisequi was procured by the DPP through a misrepresentation that the appellants were not to be rearrested and recharged on the same and, or similar charges.

Nolle prosequi is a legal term, meaning “be unwilling to pursue”, or “do not prosecute”.

It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor’s decision to voluntarily discontinue criminal charges either before trial or before a verdict.

The DPP, through Principal State Attorney Oswald Tibabyekomya, assisted by trial attorneys Hashimu Ngole, Pius Hilla, Awamu Mbagwa and Shedrack Kimaro, had sought to terminate the charges, the move the defence bench under Advocate Albert Msando vehemently opposed.

Despite acceding to the powers by the DPP to enter “Nolle Prosequi”, the defence had reasoned that in exercising the powers, three conditions ought to have been met, including public interest, interests of justice and need to preserve abuse of legal process.