Director of Public Prosecutions Noordin Haji has opposed an application by Former PS Lillian Omollo seeking to have the NYS II cases tried by a three- magistrate bench.
In response to an application filed by Omollo and 52 others, the DPP says the High Court lacks jurisdiction to empanel a bench to conduct the NYS cases and it cannot usurp the powers of the Chief Justice.
The NYS cases have been divided among three magistrates. Each court is handling one file after the cases were consolidated.
One involves the Ngirita family. Omollo and former NYS Director General Richard Ndubai have two other cases pending before different courts. They concern payment of Sh167,715,700 to three companies — Firstling Limited, Kunjiwa Enterprises and Ameritrade Limited — and Sh226.9 million to companies related to the Ngirita family.
In a sworn affidavit, state counsel Caroline Kimiri says the petition by Omollo, Ndubai and others does not meet the threshold for empanelling of a bench.
Omollo and her co-accused claimed that in the course of the hearing and cross-examination of the common prosecution witnesses, there was coaching and collusion between the common prosecution witnesses.
Omollo argued that constituting a bench of three magistrates will preserve and maintain witness objectivity and prevent tainting and alteration of testimony and evidence. It would also prevent witness coaching, collaborative testimony and connivance between witnesses and the DPP.
“The only way to safeguard the fairness of the trial in these cases is to ensure expeditious trial without unreasonable delay, is constitution of a bench of all three magistrates to sit together during examination in chief, cross-examination and re-examination of the common witnesses,” the court documents read.
But the office of the DPP says the allegation of tampering, colluding of witnesses is unfounded and made in bad faith.
Kimiri says Omollo and her co-accused have not demonstrated through evidence how the prosecution has tampered, colluded or coached any witnesses.
“The evidential value of all the evidence placed before a trial court and the credibility of witnesses is determined by the trial court as it has the opportunity to judge the demeanour of witnesses during examination in chief as well as cross-examination by the accused persons,” Kirimi says.
DPP maintains that the petition is an abuse of court process as issues of threat, actual infringement or violation of an accused person's right to fair trial are issues of fact which must be proved by way of evidence.
“The orders sought by the petitioners are absurd and unknown in law and thus cannot be issued because the court lacks jurisdiction to empanel a bench of magistrate to conduct trial,” the DPP says.
