The Ksh63 billion Arror and Kimwarer dams case against former Finance Cabinet Secretary Henry Rotich is on the verge of collapsing following failure by the Director of Public Prosecutions (DPP) to lead evidence from witnesses.
In a dramatic turn of events, State Prosecutor Geoffrey Obiri presented five witnesses whom he did not ask a single question regarding the case.
On Tuesday, September 12, 2033, the prosecutor presented the witnesses namely Boniface Mamboleo, Festus Kivisu, Maina Kiondo, Benedict Omondi and Kimani Kiiru.
The five witnesses took less than 10 minutes in the dock as Obiri told the court; " I have no questions for each of these witnesses."
In response, Anti-Corruption Chief Magistrate Eunice Nyutu discharged the witnesses saying " the court notes the prosecution has no questions for the witnesses."
"You are hereby discharged," she ruled.
That was the trend for each of the five witnesses who had been brought to court under warrants of arrest.
Obiri however informed the court that he will line two other witnesses from the Controller of Budget on Wednesday, September 13.
He further presented a letter from the Office of the Auditor General where the office expressed concern and shock over the warrants of arrest issued against witnesses from the office.
"We express concern that warrants of arrest were issued against officers from this office whom had not been served with any court summons requiring them to attend court to testify in the four-year-old case, " the letter stated in parts.
The office informed the court that one of the witnesses namely Cecilia Karuka will not be in a position to attend court since she is auditing counties.
The magistrate read the letter loudly noting that the investigating officer had informed the court that he had served witnesses summons contrary to contention by the Auditor General’s office.
Obiri says the prosecution is waiting for instructions from the new DPP Renson Ingonga whom he says will review the charges against the former CS.
At the same time, the DPP has filed a formal application urging Nyutu to recuse herself from the case citing biasness and hostility.
"That court has exbited bias and hostility towards the prosecution," the DPP’s application read in parts.
The DPP accuses the magistrate for openly pronouncing herself that "she feels that the prosecution and investigators are inclined to negatively interfere with the prosecution of the matter."
Further, the DPP contends that the court perceives that the plea to adjourn the case to wait for the decision of Ingonga amounts to an interference with the prosecution of the matter.
As a consequence, the DPP believes that the court has repeatedly refused to grant the prosecutions merited adjournments.
"The court has often times granted the prosecution unreasonable short timelines to procure the attendance of witnesses often at times within an hour, " State Prosecutor Oliver Muriethi states in his affidavit.
The prosecution says that the court has been compelling it to proceed with the hearing contrary to express orders of the High Court which require the office to meet certain timelines when serving defence counsel.
The magistrate has however directed the defence to file their responses on the application within 14 days.