A Court of Appeal judge will testify against lawyer Tom Ojienda, the Director of Public Prosecutions has said.
DPP Noordin Haji said Justice Otieno Odek, who was a partner at the firm of Prof Otieno Odek, Prof Tom Ojienda and Wanyama Advocates, was not under investigation in connection with the affairs of the sugar company, as reported by the media.
Mr Haji said the judge “provided a statement to investigators on his own volition”.
“Investigations into the matter have concluded and a decision to charge Prof Tom Ojienda made on the available evidence. Indeed Prof James Otieno Odek (JA) was not in any way involved in the matters giving rise to the prosecution of Prof Ojienda and is therefore not criminally culpable.”
Prof Ojienda, a senior counsel, was set to be charged with fraud over alleged Sh89 million he received as legal fees from Mumias Sugar Company.
But High Court judge Chacha Mwita granted orders barring the prosecution of Ojienda pending the hearing of the application on February 18, 2019.
Ojienda, who appeared before Senior Principal Magistrate Martha Mutuku accompanied by about 30 lawyers, presented a copy of the order from Chacha, temporarily halting his prosecution.
“The court needs to determine whether the DPP acted according to the law while drafting fraud charges against the applicant,” stated the orders from Justice Mwita.
He was expected to face six counts of Sh64 million fraud.
In the intended charge sheet, Ojienda is being accused of uttering false document between June 5 and September 27, 2012 at Mumias Sugar.
He is said to have had uttered a false fee note for Sh1,808,000 under the name of Tom Ojienda and Associates regarding Kisumu Civil Appeal No 5/2012 while purporting to appear for James Kutsushi Atindo and others vs Patrick Okuku and eight others without instructions.
“I was presented with the charges full of malice on December 31, 2018 that are meant to ensure that I am locked out of the coming Judicial Service Commission elections,” said Ojienda.
Ojienda was freed from Muthaiga Police Station, Nairobi, on Sunday night, where he has been held since his arrest on Friday evening pending his appearance in court on Monday.
His release came in the wake of Law Society of Kenya’s (LSK) criticism of the trend to arrest suspects on Fridays, a move it said might be aimed at keeping them in police custody over the weekend.
LSK President Allen Gichuhi said the society would file a petition to challenge Friday arrests and address the issue of freeing suspects on police bonds, especially if they are not flight risks.
Mr Gichuhi was among those who called for the release of Ojienda on bond pending arraignment, saying the senior counsel cooperated with police during the search at his office.
Haji claimed that Ojienda was paid Sh89 million in fraudulent schemes that involved fake court proceedings orchestrated to get legal fees from the struggling sugar miller.
Ojienda is vying to represent the LSK in the Judicial Service Commission for a second term.