The Director of Public Prosecution (DPP) has claimed it is becoming difficult to prosecute former Treasury Cabinet Secretary Henry Rotich in a Sh63 billion dams scandal due to witness interference.
The DPP, through assistant prosecutor Alexander Muteti, spoke out after a witness who was scheduled to testify refused to take to the stand, saying he was not ready to give his testimony in the multi-billion shilling Arror and Kimwarer dams case.
“What we anticipated to be a smooth trial has turned to be a nightmare. It is a shock on us especially on the security of witnesses where a pattern is emerging which is not only shocking but can disturb the mind of any reasonable prosecutor,” said Mr Muteti.
The State counsel said they had been forced to change strategy following the reported interference, which was being investigated by the Director of Criminal Investigations, and after a second witness who was to testify passed on.
Muteti told the court that prosecuting Rotich and his eight co-accused was becoming difficult not because of the complexity of the case but because of tampering with witnesses.
As a result of the alleged interference and fear for witnesses, Muteti said they had decided to rearrange the order of calling witnesses by summoning Gideon Rotich who then refused to testify after taking oath on account that he was not ready.
According to the witness, he was not informed in advance and not given adequate time to prepare his testimony. “I have reservations about testifying in court because I was not ready to be a witness. I was only called yesterday by the prosecutors and told to come to court. And it was only after I met the prosecutors that they informed me I will be a witness,” said Gideon.
Special prosecutor Taib Ali Taib told trial Magistrate Lawrence Mugambi that Gideon’s reluctance to testify was evidence of the challenges the DPP is facing of witness tampering.
But lawyer Kioko Kilukumi, who is representing the former CS, and Katwa Kigen, who is representing former Kerio Valley Development Authority Managing Director David Kimosop, accused the prosecutor of politicising the case by making false allegations of witness interference.
“We take offence at the insinuation that we are dissuading witnesses. If it was a genuine concern, then they would have filed an application to complain. They are just scared of the formidable defence we have made to expose the weaknesses of this case,” said Mr Kigen.
According to Kigen, the decision to charge Rotich was politically motivated since the project to construct Arror and Kimwarer dams was approved by former President Uhuru Kenyatta, the Attorney General and other ministers.
The lawyer said the DPP had resorted to making “wild allegations to gain public sympathy after realising they have no case against any of the accused persons”.
“The allegations of witness interference have been made on behalf of an orphaned DCI office which was being used for political reasons. Their allegations, which are full of political undertones, will not help them prosecute the case,” said the lawyers.
The reluctance by the witness to testify forced the magistrate to adjourn the hearing to enable the DPP put its house in order.
“The witness says he has reservations about testifying. He looks tense and is not in a calm state of mind to testify. Since witnesses play a critical role in the administration of justice, they can only testify when they feel comfortable,” ruled Mr Mugambi.
Rotich and Kimosop are facing charges of conspiracy to defraud Sh63 billion for the construction of the two dams. Also in the dock are former Chief Economist Kennedy Nyakundi, and former National Environment Management Authority Managing Director Geoffrey Wahungu.
Others are Jackson Kinyanjui, William Kipkemboi, Paul Kipkoech, Francis Chepkonga and Titus Muriithi. They are facing a total of 30 counts in which the prosecution claim they conspired to defraud the government by entering into a contract for construction of the Arror and Kimwarer multi-purpose dams without approval.
Other charges are for wilful failure to comply with procurement rules, abuse of office, engaging in projects without prior planning, failing to comply with laws on managing public funds, and financial misconduct.
Mr Mugambi directed that the hearing resumes on November 18.