NYS scam suspects' nail biting moment in bail appeal

For the suspects charged with the theft of millions from the National Youth Service (NYS) the 20 days they have so far spent in police custody could be the longest and agonising moments in their lives.

But it could get longer depending on how High Court Judge Justice Hedwig Ong’udi rules on their bail applications on Tuesday.

Their applications for bail has been met with stiff opposition from the prosecution which argues that they will interfere with witnesses if they are released, resulting in a push and pull between the two camps.

The suspects were charged on May 29, having already spent a day in police cells after they were arrested over the loss of Sh468 million at NYS.

Those in custody include suspended Principal Secretary in the Ministry of Public Service Lillian Omollo, NYS director Richard Ndubai and five members of the Ngirita family, who were allegedly paid Sh60 million by NYS for supplying air.

They are Lucy Wambui Ngirita, Jeremiah Gichiri, Catherine Mwai, Phyllis Njeri Ngirita and Anne Wambere.

BAIL APPLICATION

For instance, in an affidavit sworn by an investigator Paul Waweru in the case against the bail application by suspended NYS director Richard Ndubai, the prosecution fears that Mr Ndubai might use his position and influence to intimidate witnesses.

“The majority of the witnesses set to testify in the case(s) that the applicant faces are junior officers who were under him, hence a very high likelihood of interference and intimidation of witnesses,” the affidavit reads.

The prosecution has also argued that bail was discretionary and not mandatory as the defence has been arguing. Moreover, as Chief Magistrate Douglas Ogoti ruled, the offences for which the accused have been charged were " worse than murder".

In his ruling, Mr Ogoti had argued that he could not release the suspects on bond because they are facing serious economic crimes with the potential of causing anarchy, a threat to peace and national security.

“I direct that the cases be expedited,” the magistrate ruled. It was this ruling that prompted the suspects to approach the High Court arguing that the Constitution does not distinguish offences that are bailable and the ones that are not.

PAST MIDNIGHT

But the defence seem to have more ammunition up their sleeves. They contend that Mr Ogoti conducted the bail application sessions well past the normal working hours.

The session lasted well past midnight. As such, the defence wants everything that was argued after the working hours be declared void.

They also claim there was interference with the independence of the Judiciary.

According to the lawyers, the language of Mr Ogoti that the graft charges brought against the suspects were worse than murder was political and spoke to some external influence.

They also claim a letter the Director of Public Prosecutions Noordin Haji wrote to Chief Justice David Maraga, proposing that their two institutions work together, amounted to improper influence.

“In a bid to further scale up the fight against corruption I request our institutions (Judiciary and ODPP) robustly implement Section 4(4) of the Anti-Corruption and Economic Crimes Act, that is, the hearing of corruption cases on a day-to-day basis until conclusion.

IMPROPER INFLUENCE

“For my part, I have already directed my officers not to seek adjournments unless in exceptional circumstances,” the May 24 letter by Mr Haji reads in part.

The defence has argued that the letter amounted to improper influence on the judiciary to the detriment of their clients.

Tuesday will therefore be an important day in the lives of the suspects as it mean that they continue staying in custody or go about their trials while they are free.

Some observers say that the court might grant bail but fix a very high amount that many of the suspects may not afford.