The trial of former National Treasury Cabinet Secretary Henry Rotich and eight others took a new twist after a judge directed a prosecutor to apologise to the presiding magistrate over what he termed unethical and uncalled-for conduct.
High Court Judge Nixon Sifuna said the motive of the public prosecutor was ulterior and it was not aimed at promoting the rule of law, the protection of rights and the administration of justice.
The judge made the ruling while dismissing an application by the Office of the Director of Public Prosecutions seeking to review a decision by trial magistrate Eunice Nyutu who declined to adjourn the case.
According to the prosecution, the magistrate had exhibited bias by declining applications to adjourn the matter, even in deserving circumstances, and at the same time compelling witnesses to proceed with their testimony within short timelines.
Justice Sifuna rejected the application for a review saying it was manifestly made in bad faith, with the pre-determined intention of intimidating, blackmailing, arm-twisting, frustrating the trial magistrate and subduing her into dancing to the prosecutor’s whim.
“Clearly, the prosecution’s wish was to withdraw the case having been rejected by the trial magistrate. This prosecutor, instead of pursuing the avenue of appeal, embarked on a discernibly choreographed pattern of willfully killing the case by attrition and have it die a ‘natural death’. This action is condemnable and, I hereby condemn it loudly,” the judge said.
The judge directed the prosecutor, Geoffrey Obiri, to tender a verbal apology to the magistrate when the case resumes.
Justice Sifuna further directed that the Sh55.8 billion corruption case be concluded within six months from the date of the ruling.
Mr Rotich and his co-accused have denied several counts related to the alleged loss of funds meant for the construction of the Kimwarer and Arror dams in Elgeyo Marakwet County.
Justice Sifuna also suggested that Kenya should come up with regulations that provide for liability and sanction for investigators and public prosecutors who bungle cases or lose them through neglect or willful conduct.
The judge rejected the application for review stating that the freelance and wanton revisions (especially interlocutory revisions) can interfere with the decisional independence of the subordinate courts, and the smooth running of their proceedings.
He said the High Court cannot use the power of revision to micro-manage proceedings in a lower court.
“For instance, as is urged in this revision, probe the deservedness of every adjournment sought by the parties in the trial court and interrogate the trial court’s every decision on each application for an adjournment. This will be an absurdity,” he said.
The judge added that the High Court can only be called upon to intervene in exceptional, manifest and extreme circumstances, for instance where a denial of adjournment has resulted in a violation of the constitutionally protected right to a fair hearing.
He noted that before the trial court, the prosecution had made what he termed as a ‘three-front military like attack’ with three applications, ‘ostensibly aimed at frustrating and eventually ousting the trial magistrate from the case’.
“These incessant, sustained and persistent efforts by the prosecutor, are in my view among the other ulterior motives, calculated to oust the learned trial magistrate from the case. Ostensibly for her firm stands on procrastination and match-fixing by the prosecutor,” he said.
The judge said to sit in the anti-corruption court, a judicial officer needs to have a spine of steel. Because corruption, like a dragon or devourer, fights back so viciously and tirelessly.
Justice Sifuna said the application by the prosecution was not only an abuse of the court process but also an affront to the judicial authority and independence.
According to the judge, instead of prosecuting the case, the prosecutor chose to take on the presiding magistrate.
“In such a scenario, the accused persons simply sat back with folded hands and enjoyed the unfolding drama. I must call out the learned prosecutor for this. A public prosecutor must conduct the case in a manner that promotes the public interest and the public good,” he said.
The judge directed that the case to resume forthwith and proceed without adjournment except in deserving circumstances, which will be determined by Ms Nyutu.
