Lawyers for a Turkish tycoon Osman Elsek Erdenc have questioned the Director of Public Prosecution’s (DPP) intention for terminating the prosecution of a state witness implicated in uttering false rape claims against a Zimbabwean tourist.
On Saturday, Elsek's lawyer Cliff Ombeta described the DPP's decision as "totally out of line" and accused the state of trying to save a case that is unravelling fast.
This witness is also lined to testify against the Turk who is charged in a Malindi Court with defilement. Elsek has denied the charge and is out on bond.
On September 8, 2019 Ms Sophia Sein Mutaiwua was charged with lying to police that the Zimbabwean Dubbery Bonnie Newman raped her daughter but in July this year the DPP withdrew the charges to enable her testify for the state in a separate defilement trial against Turkish Osman Elsek.
The Zimbabwean was not tried after police discredited Ms Mutaiwua's claims and testimony.
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Ms Mutaiwua was, initially, listed as a state witness in both cases before she was charged for uttering false testimony. The complainant in both cases is her daughter. Last year she testified against Elsek but was stood down before she was cross examined by the defence.
Before the trial resumed her prosecution for false testimony in the Zimbabwean case at Shanzu law courts was terminated sparking protests from the defense.
Elsek's other lawyer Duncan Wamotsa told The Standard that he discovered the termination of the woman's criminal prosecution at the Shanzu law courts early last week as the defence prepared for the resumption of his client's trial in Malindi.
"We went to peruse our files in Shanzu and discovered the case against Ms Mutaiwua was terminated," said Wamotsa who added that: "We discovered there were letters between the Office of the Director of Public Prosecution in Mombasa and the Child Protection Unit in Mombasa."
On September 8, 2019 the police charged Ms. Mutaiwua in Shanzu Court for giving false information to state officer contrary to Section 129 of the penal code.
In a letter dated July 16, 2020 seen by The Standard, ODPP senior prosecution counsel in Mombasa Ms. Maureen Anyumba confirms that the criminal case against her at the Shanzu law courts has been withdrawn under Section 87 (a) of the Criminal Procedure Code.
Ms. Anyumba says in the letter to the Child Protection Unit that the witness' testimony is required in the Elsek's trial in Malindi.
“With regards to the query on whether the charges against Sophia Sein Mutaiwua could be withdrawn and the weight of her evidence in the Sexual Offences case 23 of 2019 R (republic) Vs Elsek Osman Erdinc, our office was informed by our Malindi counterparts via a letter dated June 25, 2020 reference MLD/ADV/3(392) that the case pending against the accused Sophia Sein Mutaiwua criminal case 1363 of 2019 filed at Shanzu law courts was withdrawn following the directives by the Director of Public Prosecutions and her evidence is vital in Malindi Sexual Offence Case Number 23 of 2019," the letter reads in part.
The letter further states: “Having been notified of the position of the above matter, the file is returned back to your offices.”
Before the Shanzu court, Ms Mutaiwua was accused of giving false information to police implicating the Zimbabwean in the alleged defilement of her daughter. Newman was never tried after police established her testimony was false and she was arrested and placed on trial instead.
Police believed she was uttering the false testimony to a chief inspector Andrew Waroi to extort the Zimbabwean.
In subsequent investigations police established that the alleged defilement by Newman never happened and had never been reported in any police station.
On Saturday, Wamotsa told The Standard that the termination of Ms Mutaiwua's trial was suspect.
"We find that [termination of charges] to be sinister. It is not fair at all," the lawyer said and added that the prosecution was misdirecting itself by holding onto this witness.
"She had testified against my client and was stood down in August last year," according to the lawyer who added that the defence considers Ms Mutaiwua to be unreliable and the decision by the DPP to end her trial for giving false information disturbing.