Former Migori Governor Okoth Obado has failed in his bid to delay a Ksh 505.6 million corruption case, where he is charged alongside his children and proxies for allegedly defrauding the county government.
Mr Obado and his 10 co-accused wanted the trial restarted after a new magistrate, Mr Victor Wakhumile, took over the case, following the promotion of Chief Magistrate Lawrence Mugambi to judge of the High Court last year.
Pushing for a fresh hearing of the prosecution’s case, the accused argued that the new magistrate needed to do his own assessment of the evidence and have the opportunity to see the demeanour of prosecution witnesses.
“Section 200 of the Criminal Procedure Code (CPC) gives the accused persons right to elect how to proceed before a new judicial officer. Either to proceed from where the hearing had reached or start de novo (afresh). In this case, the accused have elected a fresh hearing,” Defence lawyer Peter Ario told the court.
“The incoming judicial officer do not just take evidence from witnesses but also look at the demeanour of a witness. No prejudice will be suffered if this trial starts afresh,” he stated.
However, Mr Wakhumile declined the request and ruled that the hearing will proceed from where it had reached. He said starting the hearing afresh would delay the case.
“Parties agree that provisions of section 200 of the Criminal Procedure Code (CPC) are not coined in mandatory terms. It has taken two years to hear part of the testimony,” said magistrate Wakhumile.
“If we start de novo (afresh), it will take longer and infringe Article 159(b) of the Constitution, which provides that justice will not be delayed. Starting afresh will be an affront to Article 159(h),” he ruled.
The magistrate observed that the case was still at the preliminary stages of the hearing since the first prosecution witness was yet to conclude his evidence.
The witness, Mr Robert Ronoh, who was also the case investigating officer, began giving his testimony in January 2020. The magistrate said Mr Ronoh’s testimony involved documentary evidence and was halfway to a conclusion. The magistrate fixed the case to be mentioned on April 25, to set dates for the hearing.
The prosecution, led by State Counsel Eva Kanyuira, said the trial was moving slowly because of language hitches and bulky documents in the custody of the investigating officer.
She said that one of the accused, Ms Peninah Auma, does not understand English or Kiswahili and the court proceedings have to be interpreted to her in the Luo language.
“There are minimal documents that are yet to be brought to the court’s attention. The bulkiness of these documents is one of the reasons the Director of Public Prosecutions is urging court to proceed with the matter from where it had reached. You also noted that we have to invite an interpreter in these proceedings, which is one of the reasons the testimony of the first witness has taken long. Due to that technicality, we urge court to consider having this matter proceed,” Ms Kanyuira told the magistrate.
In the case, Mr Obado is charged alongside 10 people, including his four children, and Mr Kwaga with defrauding the Migori County Government.
The governor’s children are named as Dan Okoth, Scarlet Okoth, Jerry Okoth and Evelyne Okoth.
The other accused persons are Mr Kwaga’s five relatives, including his 72-year-old mother, Peninah Auma, his wife Christine Akinyi, his sister-in-law Carolyne Anyango and his brothers Patroba Ochada and Joram Opala.
They are jointly facing 27 charges, but the governor is carrying the lion’s share, of 22 counts.
The Ethics and Anti-Corruption Commission claimed companies owned by the governor’s close associates such as his family members and Mr Jared Peter Odoyo Kwaga were awarded multi-million-shilling tenders by the county government between the financial year 2013/14 and 2016/17.
In his evidence, Mr Ronoh said that the county government bought one size A4 envelope at Sh500 from a company linked to a business proxy of Mr Obado.
The court heard how the county government paid millions of shillings to companies linked to the ex-governor’s associate for goods and services supplied to the office of the governor.
The companies – Dankey Press Ltd, Kujulu Business Ltd and Mactoback contractors – are connected to Mr Kwaga, a proxy of the governor, according to the anti-corruption watchdog.
Mr Ronoh, an investigator attached to the Ethics and Anti-Corruption Commission (EACC), told the court that multiple documents for various companies were recovered from the house of Mr Kwaga in Uriri.
Among the documents seized are Local Purchase Orders (LPOs) containing details of the multi-million-shilling questionable contracts awarded by Migori County Government and payments made to the companies.
The investigator, while being led in his evidence in-chief by Ms Kanyuira, said that the documents were found in Mr Kwaga’s residential house on March 15, 2018, following a search by a team of EACC officers.
Some of the LPOs found in the home related to companies such as Dankey Press limited, Kujulu Business Ltd and Mactoback contractors on tenders awarded on various diverse dates between in 2014 and 2015.
The tenders, according to the documents, were for goods and services to be supplied to the governor’s office.
Regarding LPOs for Dankey Press Ltd, the court heard that the company had been issued with a contract for the provision of consultancy services for sanitation in homesteads and public places in Migori County. The tender was worth Sh9,553,360.
The company was also issued with another tender worth Sh5.8 million for the delivery of various goods to the governor’s office.
The goods included pens, crystals, envelopes, printing papers, and staplers. According to the documents, the company was required to supply 1,000 pieces of staplers, each at Sh1,200 translating to Sh1.2 million in total.
The firm was also required to supply 5,000RM A4 papers at a cost of Sh600 each totalling Sh3 million. In addition, the firm was contracted to supply 2,000 envelopes of size A6 printed at a cost of Sh300 each translating to Sh600,000.
