Covid-19 outbreak stalled hearing of economic crimes cases

Some accused persons like Waititu claimed they had contracted the virus and could not attend court.

In Summary
  • Handling cases virtually has been a challenge especially in rural areas where internet is inaccessible.
  • Thanks to coronavirus which made administration of justice difficult, suspects didn't have to make court trips. 
Former Kiambu Governor Ferdinand Waititu
ACCUSED Former Kiambu Governor Ferdinand Waititu

In the year 2020 many corruption cases stalled, compounding the persistent backlog problem that the Judiciary has battled for years with little success. 

Thanks to coronavirus which made administration of justice difficult, suspects didn't have to make court trips. 

The virus affected courts across the nation and made the Judiciary rethink the safety of courtrooms.

This forced the Judiciary to come up with innovative ways to dispense justice to Kenyans.

The National Committee on Administration of Justice held several meetings to find a safe way of taking care of the health of judicial staff without stalling the wheels of justice.

On March 15, it was decided that the Judiciary needed to scale down activities in order to allow justice sector institutions to assess and develop measures that would curb the spread of Covid-19. 

Committees were established in the NCAJ and the Judiciary to advise on compliance with Ministry of Health guidelines and on measures for sustained service delivery in the entire justice sector in the wake of the pandemic.

The measures implemented in the Judiciary included the accelerated use of non-contact platforms such as e-filing and virtual hearings and mentions of matters.

But lawyers Kithi George and Lempaa Suyianka said handling cases virtually has been a challenge especially in rural areas where internet is inaccessible.

This, they said, will continue to affect the administration of justice if the Judiciary is not adequately funded.

“We need cases to proceed but the facilities are not adequate. The network system at the Judiciary is quite poor. It's even frustrating uploading documents,” Kithi said.

He said handling cases virtually may not be as effective as having them physically especially when it comes to cross-examining accused persons in graft cases.

And as a result, a number of cases in the anti-corruption courts were delayed or did not proceed at all owing to the effects of the pandemic. 

For Instance, the Sh84 million graft case facing Samburu Governor Moses Lenolkulal was pushed to January next year because of inadequate spacing within the court rooms. The inability to practice social distancing together with overcrowding imperils the lives of many, a chance the Judiciary was not going to take. 

And given that some of the corruption cases involve many accused persons and a high number of defense counsels, this posed a challenge to achieve the social distance measure required by the Ministry of Health.

Social distancing means staying at least six feet from other people, not gathering in groups and staying out of crowded places. But for a number of court rooms, this was not achievable.

Some were forced to operate in makeshift courts within the Milimani precincts.

But still this was not enough as some counsels particularly in the Sh500 million NHIF scam asked the court to at least add more benches or chairs to accommodate the people attending the hearing.

The NHIF cases involve former NHIF CEO Simeon Ole Kirgotty and Geoffrey Mwangi alongside other officials.

They were in 2018 charged with several counts relating to provision of integrated revenue collection system leading to the loss of millions of shillings.

The monies were allegedly lost through the JamboPay service at NHIF. The case has never been heard.

Matters with manageable people present in court have proceeded, like the Chickengate scam facing former IEBC CEO James Oswago, the corruption charges leveled against Nairobi Governor Mike Sonko, the Sh7 billion Triton scandal and Sh73 million fraud case against Migori Governor Okoth Obado. 

The Sh588 million case against impeached Kiambu Governor Ferdinand Waititu was delayed following claims by the latter that he had tested positive for corona.

Waititu missed three court sessions because of the corona situation, a claim magistrate Thomas Nzyuki declined to entertain.

He had initially adjourned the case to accommodate Waititu but he eventually directed the case to proceed to hearing pending a report by three independent doctors attached to Kenyatta National Hospital to ascertain whether Waititu was indeed sick. At the time the case kicked off on November 3, the report had yet to be filed in court. The matter is now slated to proceed next year. 

A judge was forced to delay the pronouncement of the Sh283 million cemetery case five times following claims that one of the accused persons was suffering from coronavirus.

The judgement had been ready since February but it was delivered in September this year.

Lawyers representing Mary Ngethe produced a medical report to verify that their client was in a serious condition. The judge at that time said he would give Ngethe the benefit of the doubt since there was a medical report. “But whether these reports are stage-managed or not, only God knows,” the judge said. 

However, when Ng'ethe finally appeared in court, it was revealed that her name did not appear anywhere in Lancet's system as she had earlier alleged.

She had presented medical reports from medical firm claiming she was sick.

The DPP at that time said they received documents from Lancet confirming that lab tests on Ng'ethe did not emanate from them.

The DPP subsequently asked the court to have Ngethe investigated for committing perjury and uttering a false document.

The judge then ordered the relevant authorities to investigate the medical reports and confirm whether they were forged and necessary actions taken thereafter. 

Ng'ethe was finally convicted and is serving a three-year jail term over her involvement in the Sh283 million cemetery scam. 

Edited by Henry Makori