A criminal case against Busia Governor Sospeter Ojaamong and eight others has been temporarily stopped.
This is after Ojaamong moved to the High Court claiming that the prosecution has been intimidating witnesses to fix him in the Sh8 million graft case.
Justice John Onyiengo stayed prosecution at the lower court pending the hearing of the application seeking to have the case declared a mistrial and the charges against the county boss and eight others terminated.
“The criminal proceedings in the Chief Magistrate’s Court in Anti-Corruption case number 23 of 2018 hereby stay till October 2020 pending further orders from this court,” ordered Onyiengo.
The judge further ordered the Director of Public Prosecutions (DPP) and the Chief Magistrate Anti-corruption Court in Nairobi, who are listed as respondents in the matter, to file their responses by October 8.
Ojaamong wants the court to declare his case a mistrial over claims that the DPP threatened witnesses he called to defend him.
In his application, Ojaamong said that prosecution team led by special prosecutor Taib Ali Taib has frustrated the fair hearing of the case by threatening and intimidating his witness.
“We now apply that the court to find and declare a mistrial and terminate proceedings in the interest of justice and to redress the misconduct both by the court and prosecution that actively violate the accused persons individual and collective constitution rights,” says lawyer James Orengo, who is representing the governor.
The county chief gave a chronology of events on how Taib allegedly threatened his witness, Jairus Oriko, and how the prosecution tampered with the evidence.
Ojamoong said on July 22 when Oriko was being cross-examined, Taib said he would “recommend to the investigating officers why they did not actually go for him.”
Oriko was the man tasked with supervising and overseeing the solid waste management project.
Further, Ojaamong said that the effect of Taib’s alleged threat is that witnesses have threatened to abandon the accused persons and to refuse to appear to offer any testimony on their behalf due to prosecutorial threat, causing a miscarriage of justice.
“The threats by Taib have caused fear and anxiety amongst the witnesses creating apprehension of intimidation and possible prosecution amongst the witnesses and thereby taking away any possibility of an intended fair trial for the accused persons, and the considerable time taken in preparing their witnesses for said hearing,” said Orengo.
He added: “By the said intimidation and threat, the prosecution counsel hindered and violated the accused person’s individual and collective right under Article 50 of the constitution to call whichever witnesses to adduce testimony in their defence.”
Further, the lawyer said that the conduct of the prosecution counsel also amounts to contempt.
The orders came hours after the trial Magistrate Douglas Ogoti declined to adjourn the matter and directed the case to proceed for defence hearing on Monday afternoon with the same witness who is alleged to have been intimidated by the prosecution.
The court set for further defence hearing running through from October 5 to November 19, 2020.
Ojaamong was charged in July 2018, alongside his Finance minister Bernard Yaite, Chief Finance Officer Leonard Obimbira and Head of Treasury Accounting Samuel Ombui.
The nine have since been put on his defence after they were found to have a case to answer in May this year.
Ogoti, who ruled that the prosecution has established its case against them, hence put them on their defence after calling 20 witnesses and adducing 50 documents showing how the governor awarded a tender to a ghost company.
Governor Ojaamong and his nine co-accused were charged with engaging in a scheme to defraud the Busia County government of the said amount between March and September 2014.
The prosecution said Ojaamong travelled to Germany on April 1, 2014, with the officials to study new technologies on solid waste management. The trip was fully funded by MRE Limited.
Seven days after, Ojaamong signed an MoU with MRE Ltd, the prosecution said.
The county was to pay Sh8 million to MRE for a feasibility study on solid waste management for the Busia government.
But at the time of signing the MoU, MRE was not registered. The company came into existence on July 8, 2014.