• Ojaamong has accused the prosecution team led by special prosecutor Taib Ali Taib of witness coaching, evidence tampering and witness intimidation.
• The county chief was in 2018 arraigned and charged with abuse of office and other corruption-related offences.
Image: FILE
Busia Governor Sospeter Ojaamong wants a magistrate's court to declare a mistrial in the Sh8 million graft case facing him and eight others.
Ojaamong has accused the prosecution team led by special prosecutor Taib Ali Taib of witness coaching, evidence tampering and witness intimidation.
The county chief was in 2018 arraigned and 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, leading to loss of Sh8 million. He is charged alongside Madam R and other county officials.
The prosecution called 20 witnesses and closed its case on February 20.
Ojaamong and his co-accused were subsequently placed on their defence. In an unsworn statement, Ojaamong informed the court he would be calling his own witnesses.
In an urgent application, Ojaamong says Taib has frustrated the fair hearing of the case by threatening and intimidating his witness.
He gives a chronology of events on how Taib threatened his witness — Jairus Oriko — and how the prosecution tampered with the evidence.
The county chief says on July 22 when Oriko was being cross-examined, Taib said he would "recommend to the investigating officers why they did not actually go for him".
Oriko was the man tasked with supervising and overseeing the solid waste management project.
Ojaamong says the effect of Taib’s alleged threat is that witnesses have threatened to abandon the accused persons and to refuse to appear to offer any testimony on their behalf due to prosecutorial threat, causing a miscarriage of justice.
“The threats by Taib have caused fear and anxiety amongst the witnesses creating apprehension of intimidation and possible prosecution amongst the witnesses and thereby taking away any possibility of an intended fair trial for the accused persons, and the considerable time taken in preparing their witnesses for said hearing,” Ojaamong says through lawyer James Orengo.
Ojamoong also claims that the prosecution counsel abused due process by purporting to present a witness statement that was never authored by the witness.
The witness was Nicodemus Mulaku who during examination testified before the court that he never visited the EACC offices and never recorded a statement. Mulaku was the current county secretary of Busia county government.
Ojamoong further claims that the prosecution has concealed documentary evidence in the form of county procurement plans and budgets that are relevant to the case. The documents are within their custody but hidden from defence to secure a conviction at any cost.
The trial process against the accused persons is flawed and should the court order a mistrial, Orengo says, it would be unjust to restart proceedings.
He says restarting the case before a different court would pave way for systematic abuse of the trial process by the prosecution who would regard the previous trial as a rehearsal for a second attempt to convict the accused persons.
"The accused persons would be at a clear disadvantage as they have already disclosed their defence strategy during the trial so far and thus the prosecution would have an opportunity to re-strategise their case to enhance the prospects of securing a conviction," Orengo says.
As a result, the county chief wants the case declared a mistrial and they be acquitted unconditionally.