President William Ruto announced in March that he has successfully brokered a deal with Italian firms, which have sued Kenya over cancellations of contracts to construct dams in Elgeyo Marakwet, to end all cases within a month, including the dispute before the International Court of Arbitration.
Although it is not clear whether the international cases have been withdrawn, something dramatic has been happening before a trial court in Milimani, in a case connected to the controversial projects.
The trial of former Treasury Cabinet Secretary Henry Rotich, who is facing charges over the alleged loss of Sh55.8 billion meant for the construction of Kimwarer and Arror dams, is slowly collapsing.
For several weeks now, those present in court have been treated to a drama that has left many puzzled. It has become a ritual as the same script is played out repeatedly.
When the matter is called out, all accused persons register their presence and the prosecutor indicates readiness to proceed with the matter, with two or three witnesses set to testify.
A witness is then called to the dock, he or she takes the oath or affirmation and introduces themselves to the court.
And instead of leading them in examination, the prosecution states that it has no questions for the witness. The defence equally has no questions for them and the trial magistrate discharges them, paving way for the next witness to take the witness stand.
The same has happened for 29 witnesses, a move that has seen the case, which has dragged on in court for the past four years, clear more than half of the 52 witnesses the prosecution had stated that it will call, at the beginning of the trial in July 2019.
Cooperativa Muratori & Cementisti – CMC DI Ravenna Societa Cooperativa (Italy), Itinera SPA and CMC Di Ravenna- Itinera JV SCPA were contracted to build the dams. Following cancellation of the contracts, the three firms sued Kenya seeking Sh11 billion compensation for the contract cancellations.
If the case before the international court is withdrawn, then the trial in the local courts is dying a slow death.
Without giving any tangible reasons for not leading evidence from 29 bonded witnesses in the last one month, two state prosecutors Geoffrey Obiri and Oliver Muriithi only told the trial magistrate Ms Eunice Nyuttu, “We have no questions for these witnesses.”
The prosecutors have adopted the trend after Ms Nyuttu declined to adjourn the case to enable the newly appointed Director of Public Prosecutions (DPP) Renson Igonga read the file, acquaint himself with it, and then give fresh directions.
It was equally the same for former CS Agriculture Peter Munya who was compelled to appear in court to testify but was never asked a single question by the prosecution.
Other witnesses who hardly took a minute in the dock when summoned to testify were Dr Julius Muya and James Kuria.
During the entire trial, only 8 witnesses have given their evidence in court against the former CS, who has been charged with nine others.
At some point, Ms Nyutu issued a stern warning saying she will not entertain any interference with the case or non-production of witnesses.
“I will not hesitate to exercise my powers and cite parties in court for contempt. It is also the last time the matter was being adjourned,” she said.
The magistrate made these remarks when a warrant of arrest was issued against Mr Munya for failing to appear in court to testify in the case.
Ms Nyuttu took issue with the DPP in the manner it was conducting the case saying “faceless officers” in the prosecution office had thrown the case to a quagmire.
“It is now well over three weeks and these faceless officers have been giving you (Obiri and Mureithi) oral instructions to secure an adjournment of this matter awaiting the assumption to the office of Ingonga,” Nyutu ordered the witnesses be produced in court.
Before the trial commenced, Mr Rotich had unsuccessfully sought for the termination of the case arguing that it was a violation of his rights.
High Court judge Esther Maina dismissed Mr Rotich’s petition last year stating, “It is my finding that the issues he has raised ought to be raised in the trial court. He has not demonstrated to this court that his prosecution is motivated by ulterior motives.”
