Rotich wants Arror, Kimwarer scandal charge suspended

Former Treasury CS Henry Rotich wants his trial over the Sh63 billion Kimwarer and Arror dams scandal suspended for a while awaiting a petition before the High Court challenging his prosecution.

Mr Rotich made the plea Tuesday before Justice Esther Maina. His trial is slated to begin on October 18.

The former CS through lawyer Jemimah Aluda told the court that it would be prejudicial to take him through the trial in case the petition is successful. He wants the trial suspended for at least one month.

“The lower court matter should be stood over for one month, pending the determination of the judicial review case. The outcome of the judicial review will affect the trial,” she said.

The former CS has argued that he was not responsible for procurement of the tenders and that he was not the accounting officer at Treasury but only discharged his duty, at the tail end of the process, as required by law.

Mr Rotich also questioned why the DPP left out key players in the deal including former Attorney General Githu Muigai, solicitor general Njee Muturi and former Environment CS Judi Wakhungu.

“It is absurd that the respondents chose to charge me while the Attorney General is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity and fair administrative action,” he said in an affidavit.

Mr Haji dropped charges against former Treasury PS Kamau Thugge and Dr Susan Koech, a former PS in the ministry Environment, and sought to use them as witness in the trial against Mr Rotich.

After filing the petition, Director of Public prosecutions (DPP) Noordin Haji asked the court to make various determinations. They include whether a decision to prosecute a CS can be faulted on account of pronouncement by political leaders that have no connection to the case or the evidence available to the DPP.

Ms Aluda told Justice Maina that the DPP has also made an application for the case to be determined by a bench of more than two judges and pleaded with the Judge to halt the trial, awaiting directions on the bench hearing.

The application was opposed by the Ethics and Anti-Corruption Commission (EACC) saying the application to stop the trial was being made too early. EACC told the court that it is highly unlikely that the trial court would have been concluded by the time the High Court decides on the judicial review case.

In the petition before the High Court, Mr Haji also wants the court to determine whether CSs are immune to criminal prosecution for acts and omissions in the course of their duty.

Mr Haji said various courts have given different interpretations as to the extent in which they can review the decision to charge graft suspects.

“Recently, some courts have reviewed the DPP’s decision to charge not based on proof of violation of constitutional powers in the decision-making process but based on ‘lack of sufficient evidence’, issues which should conclusively be determined by the trial courts,” he said in the application.

Mr Haji says the decision to review graft charges for lack of sufficient evidence has opened a floodgate of litigations, such as the case filed by Mr Rotich.

“The DPP in executing his mandate works at safeguarding the best interest of the public through prosecution of criminal matters, which include prosecution of corruption and economic crimes that have led to the loss of colossal sums of monies with devastating effects to the economy,” he said.

Mr Rotich moved to the High Court questioning why he was charged while key players, who sanctioned the multi-billion deal were left out.

He said the DPP selectively left out experts from Environment ministry, who provided necessary opinion before writing to the Treasury, requesting for funding of the two dams in Elgeyo Marakwet County.

Mr Rotich said he signed the agreements at the tail end as part of his statutory responsibilities and the process was undertaken by the parent ministry and Kerio Valley Development Authority (KVDA).

He revealed that Ms Wakhungu, who is currently Kenya’s ambassador to France, wrote to the Treasury in March 2016, forwarding the projects’ documents for the two dams, which included the identified financing proposal and requested for government borrowing to fund the projects on behalf of KVDA.

Justice Maina will give her directions on October 12.