The Director of Public Prosecutions (DPP) Noordin Haji has moved to the High Court seeking to overturn an order that prosecutors present upfront evidence from witnesses set to testify in the Kshs. 63Billion Kimwarer and Arror dams’ scandal case.
The DPP said he had reservations on the directive which was issued in May 2021, by Chief Magistrate Douglas Ogoti during a pre-trial and case management conference.
He order further require Prosecutors to give to the defense a chronology of calling the witnesses, accompanied by a list of documents that each witness will rely on. The information is to be provided seven (7) days in advance before the start of the hearing.
Prosecution is also required to communicate any change of the evidence to the parties three days before the hearing of the case in the case in which former Treasury Cabinet Secretary Henry Rotich is facing graft allegations alongside 17 others.
The DPP however had reservations on the directives and moved to the High Court seeking a revision and to overturn the orders on grounds that there was no factual or legal basis to warrant the order.
He argued that the trial magistrate erred by directing the prosecution on the manner it will conduct its case by limiting it to a specific order of calling the witnesses and disclosure of documents. The DPP further claimed that the magistrate did not appreciate the danger of disclosing the witnesses that would testify on a particular date for such disclosure would expose them to the risk of harm.
But Justice Esther Maina dismissed the application saying the trial magistrate made the directions in good faith. She agreed with the defense lawyer that the direction to supply a “Chronology of witnesses” is necessary in the circumstances of the case.
“In my view, the direction given by the trial magistrate does not in any way and will not in any manner affect the DPP’s power to manage its case. It is after all the prosecution that shall decide which witnesses to call and when to call the witness and which document to refer to when, or produce when,” stated the judge.
She said all that is required of the DPP by the trial court is to inform or disclose to the defense the order by which it will be calling the witnesses so that the defense can prepare itself in regard to the specific witness(s).