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Magistrate dismisses application for recusal from Sh63 billion Arror and Kimwarer dams fraud case

The trial magistrate in the Sh63 billion Arror and Kimwarer dams scam case against former Treasury Cabinet Secretary Henry Rotich has declined to rescue herself from the case.

In her ruling on October 19, 2023, Chief Magistrate Ms Eunice Nyutu dismissed an application by the Director of Public Prosecutions (DPP) indicating the case was biased.

“This application does not meet the legal threshold. It is hereby dismissed,” she ruled.

The prosecution, through state lawyers Geoffrey Obiri and Oliver Muriithi, had made an application to have Nyutu disqualify herself from hearing the case on grounds she showed open bias and hostility towards them.

It also claimed she has often times denied them “deserved adjournments” and that she has often granted them unreasonably short timelines to procure the attendance of its witnesses, oftentimes within an hour.

But Nyutu said parties in the case had seven months to prepare for the trial after hearing dates were fixed on December 19, 2022. The first trial date commenced on July 31, 2023.

Nyutu said it is during that period that the prosecution should have detected any challenges and brought them to the court’s notice, before the hearing date.

She was responding to a claim by the prosecution that the court has often granted them unreasonable short timelines to procure the attendance of its witnesses.

“It is therefore strange and inexcusable for the prosecution to demand that they be given time to procure witnesses on a hearing date,” ruled Nyutu.

“It is my finding that the application for recusal was calculated at compelling the court into granting an adjournment by any means necessary. This amounts to an abuse of the court process,” she added.

Nyutu took over the hearing of the matter on December 16, 2022, following the elevation of Magistrate Lawrence Mugambi to the High Court.

So far, the prosecution has called 41 witnesses with over twenty being presented in court and discharged without giving their evidence.

The prosecution has 15 more witnesses who are expected to testify before it closes its case.

The prosecution has on several occasions claimed that they have instructions from their superiors to adjourn the matter to await the DPP, who had not even assumed office at the time, to give directions on the matter.

The new DPP namely Renson Ingonga, has since assumed office.

In declining the adjournments, Magistrate Nyutu said she was guided by the provisions of Article 157 of the constitution which gives the DPP discretion to review a case at any stage of the trial.

“There is nothing in article 157 that suggests that the DPP’s intention to review a case should act as a suspension of the proceedings.

The DPP has no power to direct to the court when a matter should or should not proceed,” said Nyutu.

She noted that the new DPP assumed office on September 25, 2023, and since, no application in the nature of reviewing the case has been placed before the court.

“Furthermore, despite being directed by this court to place before it, a written document supposedly giving instructions to the prosecuting counsel to adjourn the case, none has been forthcoming to date,” she said

“It is the duty of this court to manage a case in a manner that upholds the constitutional requirements of a fair trial. Delayed justice is certainly not one of them,” she added.

The case will resume for hearing on October 30, 2023.

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