The State has terminated a private prosecution case filed by former public prosecutions boss Philip Murgor against the police commissioner.
The arguments Mr Murgor used countless times to terminate cases as the director of public prosecutions were yesterday used to bring to an end his case against Maj-Gen Hussein Ali.
Mr Murgor had accused the police boss of abuse of office and defeating the course of justice in his attempt to link him with the Goldenberg scandal.
His successor as DPP, Mr Keriako Tobiko, presented to chief magistrate Aggrey Muchelule quotes from arguments that Mr Murgor used when terminating a case filed by the Law Society of Kenya (LSK) and others against the attorney-general.
LSK had wanted Mr Amos Wako summoned to answer charges of abuse of office for misadvising the Government on the Anglo-Leasing scandal.
The former DPP then entered a nolle prosequi even before the AG was summoned, arguing that the AG had the powers to take over any criminal case at any stage.
And yesterday, Mr Murgor opposed the AG’s attempt to terminate his case, saying there were no proceedings before the court for him to take over.
He said proceedings could only start after the accused appeared in court and pleaded to the charges.
Mr Murgor, through lawyer Cecil Miller, said Mr Tobiko should not be allowed to terminate the case before the summons issued by the court on Thursday is obeyed.
He said he wanted the court to address nine constitutional points.
And Mr Tobiko, in his arguments, said the AG, under section 26 of the Constitution and 82 of the criminal procedure code, if he desired, could take over any criminal proceedings at any stage before judgment.
Criminal proceedings, said Mr Tobiko, started once a complaint had been filed before a court of law.
“Your honour, Mr Murgor when terminating the case against the AG had said nolle prosequi can be entered even before a complaint has been signed and accepted by the court. This argument is right in law then and even now,” said Mr Tobiko.
Mr Muchelule accepted the nolle prosequi and discharged Maj-Gen Ali, director of criminal investigations Joseph Kamau and police spokesman Jaspher Ombati.
The magistrate said: “A nolle has been presented and the issue as to whether the court would accept it or not does not arise.”
Saying he would appeal against the decision next week, Mr Murgor said it was wrong for Mr Muchelule to terminate the case without giving reason or indication whether the AG would prosecute the case.
