A request by the Director of Public Prosecutions to empanel a bench of uneven judges in former Treasury CS Henry Rotich Kimwarer and Arror dams’ case has been declined.
Rotich is challenging his prosecution over the Sh63 billion dams’ scandal.
Anti-corruption High Court judge Esther Maina on Wednesday said the application by the DPP failed to meet the threshold.
She said she is not convinced that the said office will suffer any prejudice if the application is not granted.
The DPP wanted the bench, once set up, to determine a number of questions including whether cabinet secretaries are immune to criminal prosecution.
This, he said is in respect of any acts and omissions punishable by law occasioned in the course of duty.
The DPP also wanted the bench to decide whether a decision to prosecute a cabinet secretary can be faulted on account of political pronouncement.
This, he said is by political leaders who have no connection to the subject matter of the criminal proceedings and the evidence available to him.
The DPP said the questions raised are yet to be determined and failure by the High Court to pronounce itself on such issues could easily cripple criminal proceedings in all subordinate courts.
He argued that the questions they want determined are not only of great importance to them but also the public in the war against corruption.
However, justice Esther Maina said “It is not clear to me how empanelment will settle or cure the questions, when the decision of the expanded bench of the High Court will not bind the other judges of the High Court.”
The judge said the DPP was speculating and that cannot be the basis upon which the court can exercise its discretion in their favour.
(Edited by Bilha Makokha)
