The prosecution has been directed to file a formal application on its allegations of witness interference in the Sh63 billion corruption trial of a former National Treasury Cabinet secretary.
Senior Assistant DPP Alexander Muteti on Thursday claimed in court that the witnesses were being coerced not to testify in the case against former CS Henry Rotich and eight others in connection with the Arror and Kimwarer multipurpose dams.
“We have reliably learnt of an effort to interfere with witnesses or dissuade them from appearing in this matter,” Mr Muteti told Chief Magistrate Lawrence Mugambi.
Special Prosecutor Taib Ali Taib agreed, claiming that it was because of “interference by the defence” that prosecution witnesses had become reluctant to testify.
However, defence lawyer Katwa Kigen dismissed the claims, terming them sensational and designed to attract publicity.
“We take offence at the insinuation made to dissuade witnesses. We are afraid the statement was made for the media gallery. If it was genuine it should be in an application. The claims have been made to put the defence in bad light. We maintain that this case was motivated by political expediency. Mr Muteti just wanted to capture news headlines,” protested Mr Kigen.
The prosecutor made the allegations after the defence applied to the court to adjourn the hearing of the case, saying the witness in the dock was not on the initial list it had received.
Mr Muteti explained that Maurice Juma had initially been listed as the second witness but had since died and was substituted by the new witness, Gideon Kipchirchir Rotich. He added that the prosecution had asked the court to allow it to summon the witness to testify on Thursday.
The hearing of the case was adjourned to November 18, 2022.
The witness, Mr Rotich, from the Kenya Investment Authority, claimed that he had been ambushed by the prosecutors and forced to testify, and that he was not even aware that he was a witness in the case.
Mr Mugambi stood down Mr Rotich from the witness box after he said he was not prepared to give evidence.
He said he had been summoned by the investigators the previous day without being told why.
“I received the summons via WhatsApp at 3pm on Wednesday and the investigator, Mr Tonui, told me to come to court the following day at 9am. I obeyed the summons. On arrival I met the prosecutors in the corridors and they showed me a statement I had recorded in January. I told Prosecutor (Alexander) Muteti that I was seeing the statement for the first time yesterday morning and I didn’t know I was a witness,” Mr Rotich said.
Not refusing to give evidence
He insisted that he was not refusing to give his evidence, but he needed time to prepare.
At the time Mr Rotich recorded his statement, he was working at the National Environment Management Authority.
Granting his request, Mr Mugambi said the witness seemed tensed up and was not in a good state of mind to testify in the trial.
“A witness plays an integral part in the court trial. It would not be right for the course of justice to proceed with the witness,” the magistrate said.
He asked why the prosecutors had rushed the pretrial preparation of the witness.
“I urge the DPP to put its house in order to expedite the proceedings. The defence should also cooperate,” said the magistrate.
Apart from former CS Rotich, the other accused persons include former Kerio Valley Development Authority Managing Director David Kimosop, former Treasury Chief Economist Kennedy Nyakundi, and former National Environment Management Authority Managing Director Geoffrey Wahungu.
The others are Jackson Njau Kinyanjui (former director of resource mobilisation, Treasury), Titus Muriithi (former Inspector General of State corporations), William Kipkemboi, Paul Kipkoech, and Francis Chepkonga.
They are charged with conspiracy to defraud the Government of Kenya of $501,829,769.43 (Sh56,360,501,604.99) for the development of the Arror and Kimwarer multi-purpose dam projects.
It is alleged that the accused persons committed the offences between December 19, 2014, and July 22, 2019.
The prosecution has alleged that they improperly secured a commercial loan in the guise of a government-to-government agreement and in the process made the Kenyan government liable as a financier and borrower.
They are also accused of single-sourcing an insurance policy and causing the government to lose 42,088,198 euros (Sh5.56 billion at the current exchange rates).
Mr Rotich, who was replaced at the Treasury in July 2016 after serving in the Finance docket since 2013, is battling 18 criminal charges in connection with tenders for the construction of the dams.
The prosecution had had initially charged 24 individuals, but later terminated charges against 15 of them, including former principal secretaries Kamau Thugge (Treasury) and Susan Koech (East Africa Community).
Others dropped from the trial were David Ongare, Boniface Lengisho, David Onyango, Patrick Kiptoo, Elizabeth Kebenei, Esther Jepchirchir, Moses Kipchumba, Nelson Korir, Isaac Kiiru, Patrick Kipsang, Fredrick Towett, Jotham Ruto, and Charity Muui. They were made prosecution witnesses.