Magistrate declines to quit Kimwarer, Arror dams case
Former Cabinet Secretary for the National Treasury and Economic Planning Henry Rotich appearing at the Milimani Law Court on October 4, 2023, over corruption charges against him in connection with the construction of Kimwarer and Arror dams in Elgeyo Marakwet County. PHOTO | FRANCIS NDERITU | NMG
A magistrate presiding over a case in which former Treasury Cabinet Secretary Henry Rotich and eight others are accused over the alleged loss of Sh55.8 billion for the construction of Kimwarer and Arror dams in Elgeyo Marakwet County has refused to recuse herself from the matter.
Senior principal magistrate Eunice Nyutu dismissed the application as sought by the prosecution saying it was a ploy to compel the court to adjourn the case ‘by any means necessary’.
The magistrate further ruled that this court must manage a case in a manner that upholds the constitutional requirements of fair trial and delayed justice is certainly not one of them.
The prosecution sought the recusal of the magistrate stating that she had exhibited bias and hostility towards the prosecuting counsel and made open pronouncements that portrayed them and the investigators negatively.
“It is my finding that the application for recusal was calculated at compelling the court to grant an adjournment by any means necessary. This to an abuse of the court process."
In the application made on September 11, the prosecution also claimed that the trial court always perceived adjournments as interference with the case.
According to the prosecution, the pronouncements amount to insinuation that the prosecution and the investigation team are hell-bent on compromising and interfering with the trial.
The magistrate noted that on August 31, the prosecution sought the adjournment of the matter but it was denied.
And even after it was declined, the prosecutors declined to cross-examine the witness citing instructions from their superiors not to proceed with the matter until the incoming Director of Public Prosecution (DPP) Renson Ingonga, has reviewed the file and given instructions.
The court said the record shows that the prosecution sought adjournments even when the witnesses were present in court and ready to testify.
The magistrate said although the DPP has the discretion to review a case at any stage of the trial, there is nothing in the law to suggest that the DPP’s intention to review a case should act as a stay of proceedings.
“It is trite law that any decision to review a case that is pending in court can only do so with the consent of the court,” Ms Nyutu said.
She said the DPP has no power to direct to the court when a matter should or should not proceed. “Indeed Article 160(1) of the constitution states that in the exercise of judicial authority, the judiciary shall be subject only to the constitution and the law and shall not be subject to the control or direction of any person or authority,” the magistrate said.
She noted that Mr Ingonga assumed office on September 25 and since then, no application for review of this case has been made.
Furthermore, despite being directed by the court to place a written document, ostensibly instructions to the prosecuting counsel to adjourn the case, none has been forthcoming.
Some 41 witnesses have so far testified in the trial and more than 20 appeared before the magistrate but the prosecution declined to examine them.
The hearing will resume on October 30.
Others facing charges are former National Environment Management Authority (Nema) boss Geoffrey Mwangi Wahungu, former Kerio Valley Development Authority managing director David Kimosop, and senior officials at the Treasury.
They include Mr Kennedy Nyakundi Nyachiro (chief economist and head of Europe II division), Jackson Njau (Director of Resource Mobilization), William Kipkemboi Maina, Paul Kipkoech Serem, Francis Chepkonga Kipkech, and Titus Muriithi.
The charges state that they conspired to defraud the government USD 501,829,769 by unlawfully initiating and entering into construction, financing, and insurance agreements for the development of Arror and Kimwarer multi-purpose dams.
Mr Rotich had challenged his prosecution, questioning why former Environment and Regional Development Authorities Cabinet Secretary Judi Wakhungu and experts from the ministry were not charged. According to him, he said he signed the agreements at the tail end as part of his statutory responsibilities.
