Charges dropped against suspects in Rotich’s case

Tuesday, October 19th, 2021 00:00 |
Former Treasury CS Henry Rotich at a Milimani court yesterday. The DPP filed an application to amend corruption charges against him in the Sh63 billion Kimwarer and Arror dams case. Photo/PD/Charles Mathai

Director of Public Prosecutions (DPP) Noordin Haji yesterday dropped charges against more suspects in the Sh63 billion corruption case facing former Treasury Cabinet Secretary Henry Rotich and others over the Kimwarer and Arror dams case.

In a fresh application lodged in court under a certificate of urgency, the DPP amended the charge sheet dropping the names of some suspects.

Last year, the DPP dropped charges against former Principal Secretaries Kamau Thugge and Susan Koech who were made State witnesses in the case after entering into a plea bargain. 

Haji asked the court to allow him to consolidate Rotich’s case with that of former Kerio Valley Development Authority boss David Kimosop who had been charged in a separate file.

Haji, through special prosecutor Taib Ali Taib and deputy Director of Director of Public Prosecutions (DPP) Alexander Muteti, yesterday informed Milimani Chief magistrate Lawrence Mugambi that the charge sheet had been amended after a review of the two corruption files.

In the application, the consolidation will reduce the number of the accused persons from 18 to nine persons. 

The court heard that the suspects, whose charges have been dropped will now become State witnesses after they entered into a plea bargaining. 

They are said to have since recorded statements with the DCI in line with the plea agreement.

Among the accused whose charges have been dropped are Jotham Rutto, Charity Muui, David Walunya, Nelson Korir and Samuel Kimutai Koskei.

“That persons against whose names do not appear in the consolidated charge sheet be set free henceforth and their respective cases be deemed as duly terminated under section 87 (a) of the Criminal Procedure Code,” said Taib.

In an affidavit by Muteti, the DPP says the consolidation of the charge sheet will also result in the reduction of the number of counts from 40 to 30 in the consolidated case.

Three files

The prosecution further says that consolidation of the two files will also reduce the number of witnesses from 104 in both cases to 52.

“The reason as to why we (the prosecution) want the two cases consolidated is that we will be relying on the same witnesses, exhibits thus need to have them heard together. No prejudice will be occasioned to the accused persons,” Muteti says.

“The amendment and substitution is done in exercise of the powers of the DPP under section (5) of the ODPP act number 2 of 2013.”

Muteti says that it is in the interest of justice that the two matters are heard together to avoid unnecessary delay in the conclusion in the matter.

Currently there are three court files of Rotich, Kimosop and the file on the Italian firm implicated in dams case.

However, defence lawyers led by senior counsel Kioko Kilukumi for Rotich  informed the court that they will be opposing the application for consolidation of the two cases. 

The defence lawyers said that they were ready to proceed with the hearing and it was shocking that the DPP was introducing a new charged sheet on the day of the hearing of the case against the pretrial orders. 

Kilukumi sought to be granted more time to file a detailed response as to why the two matters should not be consolidated. 

The lawyer said that currently, his client Rotich has challenged his prosecution using the old charged sheet filed in case number 20 of 2020 and if the new charge sheet is allowed it will be a collateral attack of the Judicial proceedings pending in the High Court. 

“The petition in the High Court will clearly be affected by any consolidation order that you (magistate) may issue,” said Kilukumi. 

Lawyer Katwa Kigen, for Kimosop, accused the DPP of abusing his powers in the manner he is handling the case.

Rotich and others are accused of conspiracy to defraud the government of Kenya USD 501,829,769 by unlawfully initiating an entering into contract, financing and insurance agreement for the development of Arror and Kimwarer Multi-purpose dams. 

They face 29 new charges of engaging in a project without prior planning, willful failure to comply with procurement laws, Abuse of office and committing an offence of financial misconduct.

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