Court declines to block key witnesses from Waititu graft case

Former Kiambu Governor Ferdinand Waititu on Tuesday suffered a setback when he lost a bid to block two prosecution witnesses from testifying against him in a Sh580 million graft case.

Senior Principal Magistrate Thomas Nzyoki ruled that promotion of law cannot be attained when the court shuts out evidence without a hearing.

LEGAL REQUIREMENT

The magistrate said public interest in the punishment of crime justifies legal requirement that a competent witness should be compellable.

“A witness is not bestowed with the privilege to choose whether or not to cooperate in giving information to the investigations of crime,” said Magistrate Nzyoki.

He said that the Director of Public Prosecutions’ prosecutorial powers are intertwined with the duty to identify and call witnesses.

He also pointed out that Section 125 of the Evidence Act defines competency of a witness.

This section of the law says that one  is exempted from testing only if one is of tender age, extreme old age, suffers a mental illness or any other cause which can make one incapable of recollecting relevant facts, comprehending questions, giving rational answers or knowing the duty to tell the truth.

COMPETENT

“Whether a person is competent to give evidence, is a question of fact and for the court to decide during the trial,” said Magistrate Nzyoki.

Mr Waititu had asked the court to block former Finance Chief Officer Faith Njeri Harrison and former Director of Supply Chain Management Justus Bundi Kinoti from testifying in his graft case.

He claimed that the two carried out key financial transactions that saw him got arrested and charged in court. Through lawyer John Swaka, he argued that their testimony against him would be skewed.

But the State had told court that the evidence to be adduced by the duo is relevant and that barring them will interfere with the DPP’s mandate.

The prosecution accused the ousted governor of failing to show how he was bound to suffer prejudice with the testimony of the two.

However, while upholding arguments by the prosecution, court ruled that the DPP is bound in law to exercise prosecutorial powers judiciously and in conformity with the public interest in the determination of justice.

On Monday, Mr Waititu suffered another setback when High Court judge James Makau threw out his pleas to have his successor James Nyoro barred from appointing a deputy.

Last week, the High Court also declined to stop the swearing in of Dr Nyoro when he moved to the corridors of justice to seek a reprieve following his impeachment by the Senate as well as gazetting.

EXPUNGE RECORDS

On Tuesday, the court also declined to expunge records of the said witnesses.

The embattled politician famously known as Baba Yao, was charged with six counts over a Sh580 million irregular tender in July last year.

He was charged alongside his wife Susan Wangari Ndung’u and eight others who are Kiambu County employees.

The only reprieve he obtained so far is having the court compel the Senate and the County Assembly to furnish him with records of proceedings relating to his impeachment.