What you need to know:
- A Malindi court has rejected an application by the Director of Public Prosecutions (DPP) to have former Tourism Cabinet Secretary (CS) Najib Balala and his co-accused print for themselves hard copies of documentary evidence in a corruption case facing them.
- Through prosecutor Vivian Kambanga, the DPP told the court that the Ethics and Anti-Corruption Commission (EACC) had told them that the cost of making copies for the accused amounted to Sh1 million, which was not budgeted for.
A Malindi court has rejected an application by the Director of Public Prosecutions (DPP) to have former Tourism Cabinet Secretary (CS) Najib Balala and his co-accused print for themselves hard copies of documentary evidence in a corruption case facing them.
Through prosecutor Vivian Kambanga, the DPP told the court that the Ethics and Anti-Corruption Commission (EACC) had told them that the cost of making copies for the accused amounted to Sh1 million, which was not budgeted for.
Mr Balala and 16 other accused have been charged with corruption-related offences over the construction of the proposed Ronald Ngala Utalii College in Kilifi County.
Malindi Chief Magistrate James Mwaniki said that orders issued on January 11 to have the prosecution supply soft copies of documentary evidence within seven days and hard copies within a month ought to be complied with.
Ms Kambanga told the court that EACC had told the office of the DPP that it was costly to supply copies of the documents to each accused and that serving them would take time.
“We were not aware when we entered consent (to supply the documents) that EACC will have a challenge in making hard copies, we are not saying it will be impossible to get a supplementary budget but it will take time,” said Ms Kambanga.
She further told the court that there was reasonable access to the documentary evidence through a supply of soft copies, arguing that it had not been demonstrated that the accused would suffer prejudice.
EACC said that the information contained in the soft copy was the same as the hard copies, that they were facing a constraint and that the supplementary budget would take time.
Through their lawyers, the accused vehemently opposed the DPP’s application to have the court vary its orders on the supply of documentary evidence on soft and hard copies.
The lawyers argued that the DPP was familiar with the capacity to supply copies of the documentary evidence and had not indicated any difficulties.
They argued that the investigators and the prosecution ought to supply them with the documents as the issue of budget was not the court’s problem to solve.
The defence lawyers told the court that they were not going to carry the prosecution and the investigators' burden.
They accused the DPP of trying to shift the burden to the accused, arguing that supplying documents is the responsibility of the State and the court should not allow that to be passed onto the accused.
“The application is not in good faith, you are putting the accused in obligations they are not supposed to do, to put that to the accused is prejudicing them,” said lawyer Mohamed Balala who is representing the former CS.
Mr Balala argued that the prosecution was taking the court and law for granted, acting as if the case was pre-determined.
“We should not allow that to happen, a court order was made on the consent of the parties, they should not deviate,” said Mr Balala.
He argued the prosecution needed to print the documents, bind and paginate them for the defence.
According to the defence lawyers, some of the accused are retirees and others have lost their jobs, therefore, it would be difficult to meet the costs of printing the documentary evidence supplied by the prosecution.
Lawyer Maurice Kilonzo, also representing the former CS, told the court that there was no material from the accounting department of the prosecution or the EACC showing that there was no money to cover the costs of printing the documents.
“When supplied with the documents, we will be able to follow the trial,” said Mr Kilonzo.
Former CS Balala and former Permanent Secretary Leah Gwiyo are facing charges of abuse of office.
Mr Balala and Ms Gwiyo allegedly resolved to engage private consultants against a Cabinet decision which led to irregular payment of Sh3.3 billion in a request for consultancy services for the design, documentation, supervision and contract management of the proposed Ronald Ngala Utalii College.
The accused have since denied the charge and were each released on a Sh5 million bond with a surety of similar amount or an alternative of Sh1 million cash bail.
They allegedly, being a minister and PS respectively in the Ministry of Tourism and Wildlife, jointly used their offices to improperly confer a benefit (pay the money) to Baseline Architects Ltd, Ujenzi Consultants, Armitech Consulting Engineering and West consult consultant engineers for the consultancy services.
The court heard that the offence was committed on December 13 2010 within Mombasa.
Another accused Joseph Odero trading as Westconsult Engineers denied unlawfully acquiring Sh292.4 million from the Tourism Fund, formerly Catering and Tourism Development Levy Trustees (CTDLT).
Former chief executive officers of CTDLT Allan Chenane and Joseph Cherutoi and former procurement manager Norah Mukuna are also facing corruption charges.
Others accused are Eden Odhiambo, Ruth Sande, Flora Ngoge, Joseph Ndung’u, Nancy Siboe and George Muya who were members of the tender committee of the CTDLT.
The case has been fixed for mention on March 26.