Busia Governor Sospeter Ojaamong with his lawyer Danstan Omari before Anti-Corruption court in Nairobi.


Busia Governor Sospeter Ojaamong and eight others has suffered a blow after  the Anti-Corruption court temporally allowed Ethic and Anti-Corruption Commission to investigate the case afresh over the alleged missing original documents in his Sh 8 million graft case.

“In the interim the investigations by EACC to continue so long the results will not be used in this case pending his ruling on December 4,”ruled Ogoti.

Chief magistrate Douglas Ogoti allowed the anti-graft agency to conduct further investigations over several missing original documents relating to Budget for the financial year 2013 to 2014.

He allowed the commission to conduct further probe pending his ruling to be delivered on December 4 following an application by the Governor opposing the probe.

According to court documents filed in court, the EACC have embarked into fresh investigation into alleged acts of corruption in the acquisition of solid waste management services from Madam R Enterprices Ltd in the financial year 2013 to 2014.

It seeking the production and verification of certain documents namely the original budget 2013 to 2014, original supplementary supplementary budget 2013 to 2014, original second and last supplementary budget estimates for the same financial year, handing over notes between the former county secretary and the chief officer in the Governor’s office, county executive minutes handed by Susan Ludia Lukano and Ezekiel Otieno Kwach.

The EACC is further seeking access to computers used by the County Secretary and his secretary from June 2013 to date, access and carry away computers used by the two and access to computers in the budget office for imagining.

The anti-graft agency through an affidavit filed in court by investigating officer Timothy Wahome informed the court that they commenced investigation On November 12, 2018 in order to  verify documents supplied by defence marked DMFI 1 to DMFI 17 during the hearing of the case.

Wahome claims that the same documents had not been availed to EACC and were only availed by the defence during the cross-examination of the prosecution witnesses.

“It surprises the EACC when Ojaamong refers to the documents supplied to them as drafts and yet the letter dated January 5, 2016 and September 9, 2016 was requesting for original or certified copies of the approved budgets for the financial years 2013 to 2014 and 2014 to 2015 affecting the issue of Madam R Enterprices Ltd,” says the officer.

The officer further informed the court that the accused persons will not be prejudiced in their case as the evidence gathered in the course of verification and investigations will be supplied to defence for cross-examination.

The commission also denied the allegations that the investigations are intended to frustrate, embarrass, harass and or intimidate the accused persons.

In his application seeking to stop the probe Ojaamong contendeds that the belated investigations offends the sub judice rule, violates his rights to fair trial given that the matter under investigations has progressed substantially with 19 witnesses having testified with only two prosecution witnesses remaining and also given the fact that the documents sought are already before court.

“The matter under investigations is sub-judice in the light of the proceedings before court,” said lawyer.

He claim that the DPP did not indicate, whether to court or to them of any intentions to carry out further investigations into this matter to obtain the missing documents indicated in the notice to produce or introduce additional documents in support of their case.

“It is trite law that no one can be invited to comment on a case pending before court,” said the lawyer.

Ojaamong claims that does not have a duty to disclose anything to the prosecution as he availed the missing documents which the same has been utilized during the cross examination in chief and cross examination of the 19 prosecution witnesses during the hearing of the case.

“fresh investigations commenced into the matter which is pending before court  which investigation is purely premised on the basis of documents already presented, admitted and used as evidence before court, and what is contested therefore , is the legality of the freshly instituted investigations,” says the Governor.

“The accused persons have a right to develop and put up a defence based on the documents or evidence availed to them by the prosecution. It is therefore inconceivable that the prosecution can take advantage of the accused right to defend themselves by availing evidence to commence a whole new investigation to seal gaps in their case,” says lawyer Ligunya.

The prosecution opposed the application saying that there is no law bars them from conducting investigations during trial.

Almost five witnesses have testified in the case including former acting sport and culture CEC Grace Matinde Mchuma who told court that officer from EACC only questioned her about the procurement of the solid  Waste management and asked her to sign what he had recorded.

She recalled having attended the 44th executive committee meeting on 7 May 2014 where  Solid Waste Management was discussed and adopted by the Cabinet.

“Actually I was asked questions and the person who was asking the questions is the one who recorded statement then signed” said the Grace.

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