The Director of Public Prosecutions (DPP) Noordin Haji has failed to overturn an order that prosecutors present upfront evidence from witnesses set to testify in the Sh63billion Kimwarer and Arror dams’ scandal case.
The directive was issued on May 26, 2021, by Chief Magistrate Douglas Ogoti during a pre-trial and case management conference.
The order also requires the prosecutors to “supply a chronology of calling the witnesses accompanied by a list of documents that each witness will rely on to the defence seven days in advance to the hearing”.
It further requires the prosecution to communicate any change of the evidence to the parties three days before the hearing of the case, in which former Treasury Cabinet Secretary Henry Rotich is charged alongside 17 others with corruption.
The DPP however had reservations on the directives and moved to the High Court seeking a revision and to overturn the orders on grounds that there was no factual or legal basis to warrant the order.
He argued that the trial magistrate erred by directing the prosecution on the manner it will conduct its case by limiting it to a specific order of calling the witnesses and disclosure of documents. The DPP further claimed that the magistrate did not appreciate the danger of disclosing the witnesses that would testify on a particular date for such disclosure would expose them to the risk of harm.
But Justice Esther Maina dismissed the application saying the trial magistrate made the directions in good faith. She agreed with the defence lawyer that the direction to supply a “Chronology of witnesses” is necessary in the circumstances of the case.
“In my view, the direction given by the trial magistrate does not in any way and will not in any manner affect the DPP’s power to manage its case. It is after all the prosecution that shall decide which witnesses to call and when to call the witness and which document to refer to when, or produce when,” stated the judge.
She said all that is required of the DPP by the trial court is to inform or disclose to the defence the order by which it will be calling the witnesses so that the defence can prepare itself in regard to the specific witness(s).