Bid by Isiolo assembly clerk, ex-Speaker to stop graft case fails

Isiolo County Assembly Clerk Salad Boru and former Speaker Mohammed Tupi’s quest to have their plea taking in an alleged bribery case deferred was dealt a blow after a court ordered them to appear on May 30.

The two, alongside Mr Tupi’s then aide Joseph Gatama Gurach, reportedly received a Sh140,000 bribe from Mr Waqo Gufu Boru, director of M/S Malka Constructors Limited as inducement to award a Sh28 million tender to the company in May 2016.

The tender was for the building of a perimeter fence, gate house, pavement works, parking lot with shade and renovation of existing structures at the assembly which was then sharing office space with the executive.

Through their lawyers Caroline Kamende, Mercy Mwinzi and Zainab Jirma, the four had sought to have plea-taking pushed to a later date until an application for a review of the charges that they said they had reportedly filed with the Office of the Director of Public Prosecutions was responded to.

The defence lawyers also told the court that they had applied for stay orders at the High Court in Milimani, whose outcome could influence the bearing of the case.

Defendants unwell

When the matter came up for mention on Tuesday last week, only Mr Gurach presented himself in court, with the defence lawyers saying the three others were sick.

They said Mr Tupi had been discharged from hospital on Sunday last week, Mr Boru was unwell and that Mr Gufu fell ill while at the court’s precincts and had to rush to hospital.

Ms Jirma claimed the court case was politically instigated, wondering why the government agency had waited for six years to prosecute Mr Tupi who is vying for the Isiolo South MP’s seat on a Jubilee Party ticket.

“There is mischief and bad faith in prosecuting my client. Why did it take long for EACC to charge him and how come it's coming two months to the elections?” she asked.

But State Prosecutor Solomon Naulikha opposed the application for deferment of the charges and asked the court to issue a warrant of arrest against the trio for failure to appear in court despite having been informed in advance.

Speculative

He termed the defence team’s alleged stay order and charges review applications as speculative, saying the court could not be held at ransom by an application pending in another court.

Mr Naulikha said his office and the Isiolo court had not been served with the two letters and that they could not be relied on in determining whether the accused persons would take plea or not.

“A court of law is governed by rules and regulations. You cannot choose when to come to court or not,” he said in reference to Mr Boru, Mr Tupi and Mr Gufu’s absenteeism. He also applied to have the police cash bails for the three forfeited to the state.

A contest between the defence lawyers and state prosecutor on whom a victim is lasted for several hours after the latter invited the Ethics and Anti-Corruption counsel Newton Munene to respond to the applications made by lawyers representing the accused persons.

While Ms Kamende argued that a victim is, according to the Victims Protection Act, a natural person who suffers injury, loss or damage as a consequence, Mr Naulikha said a government agency could as well be a victim.

“The prosecution team has spoken on behalf of the investigations agency. Introducing EACC to the matter will be prejudice to our clients,” Ms Kamende argued.

It took the intervention of Isiolo Chief Magistrate Lucy Mutai for Mr Munene to make his presentation in court.

In a ruling, the court said the EACC undertook a probe on behalf of Isiolo county government, residents and the national government who were by extension complainants.

Right to be heard

“Mr Munene has the right to be heard but cannot and should not introduce anything prejudicial to the case. He should not state anything far from the defendant’s application,” Ms Muta said while allowing the prosecution to incorporate EACC’s lawyer on issues raised by the defence counsel.

The four have been charged with abuse of office, conflict of interest, uttering false documents and fraud.

Mr Munene dismissed Mr Tupi’s claims that the matter was politically motivated and wondered whom the defence lawyers were representing while their clients were not in court.

“They (defendants) were all aware that they should be in court today,” he said.

While ruling on the application to defer the charges, the magistrate dismissed the defence lawyers’ report of review of charges and stay order applications saying no copy of the said letters was made available to the court “to make it known that such communication existed”.

On the stay order application said to have been made at the Milimani court, Ms Mutai said its existence could not operate as stay in the matter because its outcome was not known to either the accused persons or the applicants.

“The court has not been furnished with any document or copy to demonstrate existence of such a matter,” she said.

Ms Mutai said the defence’s report of application for review of charges was neither here nor there and the constitutional reference for stay orders was not a bar to the proceedings.

Ordered to appear in court

The court allowed the application for the three others on health grounds and ordered them to appear in court on Monday.

“The court is human and has allowed the accused persons’ application on humanitarian basis,” she said while delivering the ruling.

While ordering Mr Gatama to take plea, Ms Muta said it was a legal process like any other and not a determinant of one’s culpability.

The court was told that on diverse dates between May 26, 2016 and June same year, Mr Gatama, being an aide to Mr Tupi and member of the county assembly tender evaluation committee, used his office to procure Sh41, 000 from Malka Constructors Limited that was awarded the tender.

He pleaded not guilty to charges of conflict of interest and abuse of office.

His lawyer, Ms Kamende, applied for reasonable bail or bond terms saying Mr Gatama had cooperated with the EACC team during the investigation and that his Sh50,000 police cash bail should be retained.

He was released on a Sh200,000 bond with one surety with hearing of the case set to start on September 5, 2022.

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