- In the case, Joram Opala and six others had opposed the adducing of new evidence and amending the charge sheet.
- The governor however, said he would not oppose.
Image: ENOS TECHE
The court on Tuesday allowed the Director of Public Prosecutions to adduce new evidence in the corruption case against Migori Governor Okoth Obado.
Anti-Corruption chief magistrate Lawrence Mugambi also allowed an application by the DPP to amend the charge sheet.
In the case, Joram Opala and six others had opposed the introduction of new evidence and amending the charge sheet but the governor said he would not oppose.
In his ruling, Mugambi said the law provides that at any stage before close of prosecution case, the charge sheet can be amended.
“The charge sheet can be amended if it is realised that it is defective or there are new facts that has come to the attention or knowledge of the prosecution to warrant alterations or amended or by substitution or addition of new charges,” the court ruled.
The magistrate disagreed with the arguments by lawyer George Kithi that the DPP has to demonstrate why there is need to amend the charge sheet.
He ruled that the decision to amend the charge sheet is informed by new evidence that the DPP has discovered.
“It is also timely because the first witnesses just started testifying and the defence will not be prejudiced,” the court ruled.
On the issue of additional evidence, Mugambi ruled that there is an established principal that disclosure is a continuous process depending on the circumstances of the case.
It may also be the discovery of new material that was not available to the prosecution, he added.
“What is important is to give the accused time to study new evidence and prepare for their defence based on those reasons. I allow the application to amend the charges and introduce new evidence,” Mugambi ruled.
He then directed the accused to take fresh plea so that the hearing can proceed from where it had stopped.
However, the defence counsels objected to the fresh plea taking arguing that the charge sheet was not a legal document.
Lawyer Kithi told court that it is impossible for police to introduce a document and say it’s a charge sheet that can be used to charge the accused persons.
“The document allowed by court is a document drawn by the Kenya police we do not have a legal charge sheet before you upon which the charges can be referred,” Kithi argued.
He said the prosecution needed to file a formal application so that a correct document can be allowed by the court.
“Therefore there is no charge sheet before you and so we cannot take plea as it is an illegality,” Kithi said.
However, the prosecution in its defence said the charge sheet before the court was not a draft as it had a stamp.
They also argued that the fact that it was not signed is not a defect, adding that it is always signed by the officer in charge at the EACC by the time suspects are arrested, being processes before arraignment in court.
The court was informed that the initial charge sheet filed last year when the accused were charged, had a signature at that particular place.
“What we are doing is amending that charge sheet and the only requirement is an approval by the DPP,” the court heard.
Magistrate Mugambi dismissed the objections by the defence and directed that all the accused will take fresh plea of the amended charge sheet on Thursday.
-Edited by SKanyara