BY PRUDENCE WANZA – The graft case against Embakasi North MP James Mwangi Gakuya and 13 others had to be adjourned on Thursday 20th after their lawyers withdrew themselves from the matter.
The lawyers withdrew after trial magistrate Elizabeth Juma declined to grant them an adjournment pending hearing of the application of stay of proceedings filed at the high court which were certified urgent by Justice Mumbi Ngugi and directed the parties to appear next week for hearing.
The defense had made an application at the trial court to be supplied with the investigation diary, investigation report and a copy of the occurrence book for the matter in question.
However the state through the prosecuting counsel conceded to supply to supply the OB and the investigation diary but declined to supply the investigation report which is a communication between the EACC and the ODPP.
The defense team is made up of Dunstan Omari, Kiraithe Wandugi, philip Magal, Professor Wajakoya, Duncan Okatch, Shadrack Wambui and Stanley Kangahi.
The contention by the defense is that the accused persons right to fair trial entails them to be supplied with all documents in the possession of the prosecution which is relevant to the case whether it is to be relied on by the state or not.
It was their submission that the documents they seek are crucial and relevant to enable them put up a solid defense in relation to the allegations leveled against them.
The state on its part urged the court not to grant the orders sought as the investigation report was an internal communication between EACC and ODPP.
The court noted that the issue before it was a pre trial issue and ought to have been dealt with at a pre trial stage.
The court further found that the investigation report under section 35 of the ACECA does not fall under article 50(2)(j).
CM Juma ruled “In this case, the defense has already been supplied with the witness statements, documentary evidence and extract from the OB and the investigations diary.”
Dissatisfied with the ruling, the parties appealed to the High Court seeking to set aside, review or vary it arguing that full, accurate and complete disclosure by the prosecution of all relevant material within its possession is an essential and integral part of the right to fair hearing.
The matter is coming up for inter parties hearing on the question of stay on 25th.
The MP and his co accuses are charged with with mismanagement of public funds, embezzlement of Sh 39.8 million, conflict of interest, conspiracy to defraud, willful failure to adhere to procurement laws and fraudulent acquisition of public property.
They denied the charges and were each granted a bond of Sh 5 million of a cash bail of Sh 2 million.