Court: No new evidence in Mbarire kin trial

Dennis Edmond Apaa (left), Mwagambo Mwangombe Nyamawi (centre) and Billy Indeche (right) in a Nairobi court September 30, 2011 where they were charged alongside five others with conspiracy to commit an economic crime. Photo | FILE |

The State prosecution has been restrained from introducing new evidence in the trial of an assistant minister’s husband and a son-in-law to a minister over a Sh26 million Ministry of Water scandal.

Justice David Majanja stopped the Director of Public Prosecutions (DPP) and the Ethics and Anti-Corruption Commission (EACC) from introducing new witnesses and evidence that were not disclosed to Dennis Edmond Apaa and Billy Indeche prior to the start of their trial.

Mr Apaa is husband to Tourism Assistant minister Cecily Mbarire while Mr Indeche is Water minister Charity Ngilu’s son-in-law.

Justice Majanja, however, declined to stop their prosecution ruling that the trial scheduled to proceed on August 7 will continue before the trial magistrate.

Mr Apaa and Mr Indeche moved to the High Court under certificate of urgency seeking a permanent injunction to stop the EACC from adducing any evidence not disclosed to them prior to the start of their trial.

The two were in November last year charged alongside six senior officials with conspiracy to defraud the Ministry of Water and Irrigation Sh26.4 million over irregular awarding of tender to equip boreholes in Eastern Province.

They argued that the prosecution had produced a witness who had not been disclosed prior to the start of the trial and had indicated they would produce nine additional witnesses whose evidence they had not been provided with.

Malicious prosecution

They argued that they have a right not to be subjected to oppressive, unfair and malicious prosecution under the guise of witness protection.

According to the two, the constitution allows them to be given adequate time to prepare a defence by being informed in advance the evidence being relied upon and that evidence obtained in a manner that violates their rights would render the trial unfair.

“The prosecution had violated our rights by admitting evidence prepared after the trial had already begun and continually adjourns the matter to introduce new witnesses which is a violation of our right to a fair and speedy trial,” they claimed.

They added that their legitimate expectation to natural justice and due process of then law has been infringed and want a declaration that the production of witnesses, statements and exhibits not disclosed to them is unconstitutional.

Mr Apaa and Mr Indeche are charged alongside Isaiah Amwanzo Benjamin, Samuel Aluoch Otieno, Robert Mati Musyimi, Joseph Mutuku Nzesya, Mwagambo Mwangombe Nyamawi and Lawrence Nguniko Simitu.

They are facing ten counts of conspiracy to commit an economic crime, willful failure to comply with the applicable procedures and guidelines relating to tendering of contracts, abuse of office, fraudulent acquisition of public property and fraudulently making payments from public property.

They allegedly committed the offence between January 2009 and September 2010 at Maji House by purporting that Broad Vision Utilities, a company associated with Mr Apaa and Mr Indeche was qualified to be awarded a tender to equip five boreholes in Machakos and Makueni districts.

They have all denied the charges and are out on bond. The hearing of the petition at the High Court will be on September 28 while their trial over the fraud allegations will resume on August 7.


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