The Anti-Corruption Court has given Director of Public Prosecution Noordin Haji a last chance to supply evidence in the Sh63 billion Kimwarer and Arror dams case against former Treasury minister Henry Rotich.
When the accused persons appeared before Chief Magistrate Douglas Ogoti for a pretrial conference on Monday, the magistrate was informed that the DPP was not ready to proceed.
The DPP sought two more weeks to supply all the documents, including witness statements from former Treasury Principal Secretary Kamau Thugge and former Wildlife PS Susan Koech, who have since become state witnesses.
"The DPP seeks two more weeks to file an amended charge sheet and complete full disclosures in the case. We also seek adjournment since the two lead state prosecutors - Alexander Muteti and Ali Taib - have gone to condole with their boss Noordin Haji following the loss of his father, Garissa Senator Yusuf Haji," the magistrate heard.
But defense lawyers, led by Kioko Kilukumi and Katwa Kigen, opposed the application to have the case adjourned, terming it an abuse of the court process and the accused person's right to a fair hearing.
"It is an abuse of the court process for the DPP to bring the accused person for the last two years without being ready to prosecute. The accused are tired of coming to court only for the case to be adjourned, with the prosecution saying they are taking instructions from Haji and looking for the 18 Italians who are still at large," said Mr Kigen.
The lawyer said that his client, Mr Rotich, was charged in July 2019 so it's unfair that the evidence to be relied upon by the prosecution has not been supplied.
This trial magistrate granted the office of the DPP and the Directorate of Criminal Investigations (DCI), through investigating officer Thomas Tanui, a final adjournment to supply evidence and exhibits to Mr Rotich and his co-accused.
Mr Ogoti allowed the adjournment while condoling with the DPP.
"Upon hearing the DPP and the defence in this matter, the court notes a delay in this matter for failure by the prosecution to avail evidence and exhibits to the accused persons. I will not allow an adjournment in this matter anymore [due to] non-disclosure," ruled Ogoti.
Mr Ogoti also gave the DPP more time to produce the 18 Italians charged alongside Mr Rotich over the Kimwarer dam scandal.
They are the directors of the companies that were awarded the multi-billion shilling contract for the construction of the two dams.
On July 23, 2019 Rotich was accused of flouting procurement procedures in awarding the contract to Italian firm CMC di Ravenna.
They were accused of taking part in fraud in the planned construction of two multi-purpose dams projects in Kimwarer and Arror, Elgeyo Marakwet, estimated to be worth Sh63 billion.
They are charged with conspiracy to defraud, failure to comply with procurement laws, engaging in a project without prior planning and abuse of office, among other economic crimes.
The case will be mentioned on March 19 for confirmation of whether the prosecution has supplied documents to the accused.