The Director of Public Prosecutions has asked the High Court to refer a case in which Busia Governor Sospeter Ojamoong wants his Sh8 million graft case declared a mistrial to the Chief Justice to constitute a bench of uneven judges.
Senior assistant DPP Alexander Muteti said their application raised substantial questions of law that could only be determined by an uneven bench of judges.
Muteti said the information Ojaamong intended to rely on to challenge the proceedings in the lower court was disputable.
Ojamoong was in 2018 charged with abuse of office and other corruption-related offences.
He is accused of unilaterally signing an MoU with Madam R Enterprises Ltd in a project for a solid waste management system without due regard to procedural framework governing the management of public finances and projects, leading to loss of Sh8 million. He is charged alongside Madam R and other county officials.
Prosecution called twenty witnesses and closed its case on February 20 this year. Ojamoong and his co-accused were subsequently placed on their defense. The defense case started on July 20 with the testimony of Ojamoong and his witnesses.
But Ojamoong managed to obtain an order at the High Court on October 6 stopping his prosecution after claims of the state threatening and intimidating his witness.
He said special prosecutor Taib Ali Taib intimidated one Jairus Oriko when he said, “In fact after observing the witness, I am going to recommend to the investigating officers why they did not actually go for this guy”.
But the DPP has denied such claims, saying the words spoken by Taib were meant to stress the importance of testifying truthfully as he had opted to give sworn evidence.
It’s in regard to such claims that the DPP wants the matter handled by an uneven number of judges. Once appointed, the prosecutor wants the bench to determine whether informing a witness during trial that they risk being dealt with for perjury constitutes a threat to the witness, whether a party is allowed to record proceedings in court, among other issues.
But Ojamoong in response says the DPP’s application has not met the threshold to allow the case referred to the CJ.
He has asked the court to dismiss the application on grounds that the issues raised can be handled by a single judge.
In addition, the DPP has also taken issue with Ojamoong’s staff recording the graft proceedings while in court.
But Ojamoong said the video recording was recorded daily and openly in the ordinary course of trial without any sanction from either the court or protests from the DPP.
The matter will be heard on December 4.
