Director of Public Prosecutions (DPP) Noordin Haji wants a review of an order stopping criminal charges against Senior Counsel Tom Ojienda over payments he allegedly received from Mumias Sugar Company.
In an application certified as urgent by Justice Weldon Korir, Mr Haji said the orders were granted without affording him an opportunity to challenge the allegations made in Prof Ojienda’s affidavit.
Further, Mr Haji claims that Prof Ojienda misrepresented to the court that the intended criminal charges were in relation to the matter pending before the Court of Appeal, which Mr Haji says is false.
According to Mr Haji, the conservatory orders issued by Justice Chacha Mwita in December have made it impossible to undertake any investigations against Prof Ojienda in connection to his alleged dealings with Mumias Sugar Company, a position that amounts to granting him immunity from investigations.
“The conservatory order was issued by the court, considering that the petition would be heard and disposed of expeditiously, a fact that has proved to be elusive. And considering the public interest and gravity of this matter, it would be in the interest of justice that the application be allowed and the order be vacated immediately,” Prosecution Counsel Anne Pertet said in a sworn statement.
She added that since pleadings have closed, the court is in a better position to revisit the issue in light of all the material placed before it.
Justice Korir directed the DPP to serve the papers to Prof Ojienda ahead of the Monday hearing.
ABUSE OF POWER
According to Mr Haji, public confidence in the administration of justice is paramount and courts should ensure that the processes are not taken advantage of by parties.
He said the order granted to Prof Ojienda was given without factual presentation by his office and ought to have been canvassed by all parties within 14 days or vacated altogether.
Prof Ojienda moved to the High Court challenging his intended prosecution, arguing that it was an abuse of power by the DPP. The prosecution, he said, had lined up six counts of uttering false documents.
The Senior Counsel said that matters to do with legal fees between a lawyer and his client cannot form the basis for criminal prosecution.
He added that to make the matters worse, some of the charges were part of a case pending before the Court of Appeal, where he had obtained conservatory orders stopping commencing any criminal proceedings against him over the fiscal receipts directed at Kenya Revenue Authority.
In the ruling, Justice Mwita said he was satisfied that the petition raised substantive questions of law and the issue to be determined is whether the DPP acted properly and within the law by bringing charges against Prof Ojienda, yet there is a case pending before the Court of Appeal.
The DCI conducted investigations into fake court proceedings on Mumias Sugar that were allegedly used by several legal service providers to obtain money in the form of legal fees from the company.
The statement stated that about Sh89 million was paid through fraudulent schemes.