A Nairobi court has rejected an application by the Director of Public Prosecution Noordin Haji to amend charges against former Kenya Power boss Ben Chumo and 10 others after dropping charges against a company alleged to have supplied faulty transformer worth Sh400 million.
Chief magistrate Felix Kombo agreed with the defence lawyers that there is a likelihood of "filling gaps" in intended amendments of the charges, to strengthen the prosecution’s case.
Mr Kombo said a look at the draft amended charge sheet shows that there are fundamental changes that will completely alter the primary ingredients of the existing offence and essentially amount to new charges.
The magistrate noted that 33 witnesses had already testified and the amendment and introduction of a new charge would see the accused persons plead afresh and recall of some witnesses who have already tendered their evidence.
“I find in view of the foregoing that the accused are entitled to decry the use of trial evidence to fashion the amendments proposed in this motion and do agree that in that eventuality, there is all likelihood that the State has in fact engaged in a ‘gap’ filling mission,” the magistrate ruled.
Dr Chumo was charged in 2018 together with his successor Ken Tarus, Beatrice Meso, K.P Mungai, Joshua Mutua, Abubakar Swaleh, Samuel Ndirangu, Stanley Mutwiri, Benson Muriithi, Peter Mwicigi and John Ombui.
Also charged were directors of Muwa Trading Company Ltd, James Njenga Mungai, Grace Wanjira Mungai and John Mungia, the company alleged to have supplied the faulty transformers. The case against the company and its directors was, however, withdrawn last year.
The prosecution then sought to amend the charges following the dropping of the charges against the trio, stating that the plan was made in good faith.
The accused person opposed the amendment saying the decision was being introduced at the tail-end of the trial when they have already been in court for four years.
The accused persons said they have suffered trial-related disadvantages such as loss of travel, loss of careers, loss of reputation, family suffering among others. They said the decision is likely to further delay the trial punishing them further.
The court noted that besides removing the names of Muwa and its directors, the prosecution intended to introduce some words such as unlawful acquisition and a new charge of conspiracy to defeat justice.
The former KP bosses have denied charges of conspiracy to commit an offence, aiding the commission of a felony, willful failure to comply with procurement laws, conspiracy to defeat justice and fraudulent acquisition of public property.
It is alleged that on diverse dates between August 3, 2012, and June 12, the accused committed economic crimes by fraudulently procuring transformers worth over Sh400 million.