BY NT REPORTET.
High Court has released a detained state prosecutor on a personal bond of Ksh. 10,000 pending any intended appeal .
Mr Willy Momanyi was sent to prison for contempt of court by the Milimani Resident Magistrate Sikiyani Tobiko for failing to avail witnesses where a former Chief Executive Officer of the National Council of Non Governmental Organization Philip Okeyo has been charged with stealing over sh11 million.
Apart from one day jail term, the magistrate also ordered the young state prosecutor to pay a fine of sh25,0000 and if fails to pay he will serve five more days a decision that provoked senior assistant prosecutors to move to the high to secure a release for Mr Momanya.
The Prosecutor moved to the High Court, seeking a revision of the orders, closing the case. He also faulted the decision that found him in contempt of court.
The Judge ordered the reopening of a case closed by a magistrate after the prosecutor failed to avail witnesses.
“It is obvious that the hostility between the learned magistrate and the learned state prosecutor, Mr Momanyi who is charged to prosecute the matter cannot be wished away And therefore, to insist that the matter goes back to the same court would be injustice to the court itself” noted the judge.
In the ruling, Lady Justice Macharia said in as much as the court felt that the prosecution was not doing enough to avail the witnesses, it was irregular to force them to close the case before the period allocated for the hearing was spent.
She said the action of the Magistrate was, unmerited and could easily be construed that it was instigated by ulterior motives especially after the conviction of the Prosecutor.
While fining the prosecutor, trial magistrate Ms Tobiko Sinkiyian said Mr Monanyi failed to explain satisfactorily why witnesses had not been brought to testify. The case was listed for hearing for three days and only one witness was present.
When the matter came up for hearing before the magistrate on March 20, 2017, the prosecution said they were not ready as witnesses were not available. Mr Monanyi sought for an adjournment which was allowed. The following day, one witness testified and he again sought an adjournment. On the third day, there was no witness and he sought another adjournment and an application that was opposed by the defence lawyers.
The magistrate made a ruling, directing the case to proceed or the prosecution closes the case. The Magistrate also court found Mr Monanyi in contempt and sentenced him to one day in prison plus an additional fine of Sh25k or serve five days in prison.
“In as much as the court was displeased with Mr Monanyi’s conduct, it should have adjourned the case of the day until the prosecution had witnesses,” the Judge said, adding that it was irregular to force the prosecution to close their case before the period allocated for the hearing was spent.
