DPP Noordin Haji during a past address. PHOTO | FILE
- With only one out of 40 witnesses testifying so far, three years after the prosecution commenced, claims of attempts to derail the wheels of justice have emerged.
- The DPP claims witnesses were being dissuaded from testifying, ostensibly to defeat the course of justice.
Director of Public Prosecutions (DPP) Noordin Haji now claims there was massive interference with witnesses and an attempt to subvert justice in the prosecution of former National Treasury Cabinet Secretary Henry Rotich and other accused persons in the Arror and Kimwarer dams graft case.
Haji, through Special Prosecutor Taib Ali Taib and Senior Assistant Director Of Public Prosecutions (SADPP) Alexander Muteti, told anti-corruption court Chief Magistrate Lawrence Mugambi that witnesses are being asked to stay away, to slow puncture the multi-billion shillings matter.
With only one out of 40 witnesses testifying so far three years after the prosecution commenced, claims of attempts to derail the wheels of justice have emerged.
"We have prosecuted cases before, but I must say this, and with a heavy heart, that this is a difficult brief, not because of its complexity, but the dynamics that come with it," SADPP Muteti said.
The DPP claims witnesses were being dissuaded from testifying, ostensibly to defeat the course of justice.
"...That was precisely the reason why when we made our application, we sought summons against all the remaining witnesses because the pattern that is emerging is not only disturbing but shocking to the conscience of a reasonable prosecutor," said Muteti.
Former CS Rotich and former Kerio Valley Development Authority (KVDA) Managing Director David Kimosop are among 9 accused persons facing graft charges over the award of tenders for the construction of Arror and Kimwarer dams in Elgeyo Marakwet County.
However, defence lawyers Katwa Kigen and Kioko Kilukumi hit back, accusing the prosecution of sensationalizing the matter and seeking scapegoats after failing to prove their case against the accused persons.
The allegations from Muteti sparked a contest in court with the defence lawyers calling for the prosecution to table evidence.
"If there is interference with witnesses, this is not a matter to come and make statements from the bar, you need evidence, they should have tabled before you affidavit evidence," Kilukumi argued.
He added: "Interfering with a witness is a criminal offence, all these are prosecutors, why are they not prosecuting those interfering?"
Chief Magistrate Lawrence Mugambi concurred with the defence asking the prosecution to substantiate their claims.
"On allegations of witness interference, I concur with the defence submissions that the prosecution should substantiate it by filing appropriate applications instead of sensationalising the matters," said Magistrate Mugambi.
In the same light, SP Talib submitted: "The ODPP has already expressed to you the witness tampering and reluctance that has come up on a large scale. In view of that, we want to assure you that this problem will be dealt with by filing the relevant applications before this court."
So far, only one witness has testified in the matter. Charity Mui, a secretary at KVDA tendered her evidence for eight months, and she was to be followed by Morris Juma, who has since died.
Gideon Rotich, witness number 28, was to testify on Thursday, but asked the court for more time, claiming he needed to refresh his mind on the statement he recorded; a move that triggered a tussle between the prosecution and defence teams.
"Let the witness on the stand tender his evidence, for whatever it is worth so that as we leave this court, fairness is realized both by the defence and the prosecution," Muteti stated.
Kilukumi objected to the move saying: "If an accused person makes such a move, probably his bail will be cancelled, these are well-known and settled principles. Coming here to make statements with political undertones will not help the prosecution."
Ultimately, the witness was allowed to stand down with the magistrate saying that he was not fit to testify as the magistrate called to order the prosecution and defence teams.
"Clearly, looking at the witness, he looks tense and he is not in a state of mind to testify," said Mugambi.
"I urge all counsels to exercise restraint to avoid political undertones to ensure integrity and fairness of this process and safeguard the administration of justice by this court."
Former National Treasury Principal Secretary Dr Kamau Thugge had been charged alongside Rotich and Kimosop, but later had his charges withdrawn and was converted to a state witness in the matter. By Franci's Gachuri, Citizen