BY SAM ALFAN.
An appeal against the prosecution of former Kenya Pipeline Director Charles Tanui and the widow of former government Chief whip George Thuo failed to kick off today.
This is after the court of appeal judges heard that parties had not been served with a notice for the hearing and that other suspects had not shed light whether they want to be enjoined in the proceedings.
Appellate court judges Philip Waki, Roslyn Nambuye and Kathurima M’inoti send back the matter in the high court where they directed the parties who claimed were not heard to be heard within 45 days.
Tanui lodged a petition against his prosecution stating that the court that ordered he stands trial did not give him a fair hearing when it pronounced itself that the matter goes to a full trial.”
The former MD is charged alongside former Juja MP George Thuo’s widow Judy Thuo and her company Redline ltd and four officials over a fraudulent payment of 28 million Shillings in a phantom tender at the Kenya Pipeline Company for the installation of transformers.
Judy has been accused of receiving indefinite payment of Ksh28.5 million from Kenya Pipeline (KPC).
Judy denied receiving payment by fraudulently acquiring public property.
She is charged alongside the four former KPC bigwigs who denied various counts on abuse of office, false documentations and irregular payments contravening procurement laws.
Chief Engineer Josphat Kipkoech Sirma and Chief Technical Manager Elias Karumi are accused of making an irregular payment to Redline Limited for the installation, testing and commissioning of auto-transformers on the basis of falsified documents.
They are out a cash bail to 350,000 shillings each. They face six counts of abuse of office and failing to comply with procurement rules in awarding the contract. Judy is separately charged with acquiring public funds illegally.
The director public prosecutions through lawyer Joseph Riungu argues in opposing the appeal on grounds that “the trial court is the best forum to hear and evaluate the evidence tendered and the merit of any defence placed.”
“The trial court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge sheet,” Riungu states in submissions in court.
The prosecutor says that the prayers sought by the applicant, an order that the high court decision that denied them a reprieve be set aside and declaration that the appellant is entitled to disclosure of a report and recommendation of EACC for their case prepared under Section 35 of anti-corruption and Economic crimes act and submitted to the DPP, be dismissed.
Kenya Pipe line is alleged to have paid Redline Limited Kshs 30 million the company Judy Wamaitha Thuo is a director through the account domiciled at Commercial Bank of Africa, for supply, installation and commissioning of three autotransformers procured from Agecelee Industry of France.
“We humbly submit that the learned judge exercised her powers to make the high court decision on the revision dated November 15 2016 and the appellant has not demonstrated how the learned judge erred in arriving at the said decision.
The High Court has reversed an order made by the Milimani Anti-Corruption Court principal magistrate Felix Kombo on November 8, compelling the Director of Public Prosecutions, Keriako Tobiko, to provide the probe report forwarded to him by the Ethics and Anti-Corruption Commission (EACC).
Justice Hedwig Ong’udi ruled that the defence team had failed to demonstrate inability to present its case after having been served with all witness statements and documentary exhibits to be relied on by the prosecution being conducted by Assistant DPP Gitonga Riungu. However, the prosecution will not use the investigation report during the trial.
The DPP made an independent decision after scrutiny of the assessment by the investigating officer of the material gathered and the recommendations forwarded by the EACC.
“The DPP is not bound by the recommendations by the EACC or any other agency. Equally, the court in its determination will only evaluate the evidence presented before it and not the recommendations by the investigator,” the Judge observed in her ruling.
“My finding is that it was improper for the magistrate to find that failure to supply the report to the accused persons was in breach of Article 35 (1) (b) of the Constitution,” the Judge said.
During the brief proceedings before Magistrate Kombo , lawyer Kennedy Ogeto explained that he intended to challenge the decision to the Court of Appeal since the investigation report was crucial to the defence and the accused persons were likely to get an unfair hearing.