BUSIA GOVERNOR SEEKS TO PROHIBIT DPP’s ADDITIONAL EVIDENCE

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Busia Governor Sospeter Odeke Ojaamong with his lawyer Danstan Omari at Milimani Anti-corruption court after adjournment of his case before Chief Magistrate Douglas Ogoti .
BY SAM ALFAN.

Busia Governor and other eight accused persons have filed an application in court seeking to set aside trial court decision allowing prosecution to supply defence with additional documents in their Sh 8 million case.

Sospeter Ojaamong, Bernard Yaite , Leonard Obimbira , Allan Omachari , Samuel Ombui, Edna Odoyo, Renish Amollo, Sebastian Hallensleben and Madam R. Enterprise wants the high court to set aside trial magistrate Douglas Ogoti orders claiming that the application dated of January 2019 were not served to other six out of the eight accused persons thereby denying them right to be heard .

In their court documents filed before high court Anti-Corruption court, argue that granting the orders against the six accused persons behind their back constitute a serious violation of their right of access to justice.

“The application pursuant to which the impugned  ruling of February 1, 2019 was issued was never heard owing to the preliminary objection raised on the affidavit dated  January 25, 2019 which forestalled the hearing of the application,” reads the court documents.

The accused persons claim that the lower court was called upon to determine whether the affidavit of  January 25, 2019 could be properly form part of the court’s record or be admitted under the said application.

“In those circumstances , it could not and did not hear the application, rather it proceeded to hear and determine the preliminary objection and therefore issue orders could properly issue on the application as the accused persons were never granted audience on the same,” state the court documents.

They argue that the orders granted to the prosecution on the unheard application constituted unjustified violation of the rights to be heard as they were never granted opportunity to canvass and counter the application itself.

“The duty of prosecution to disclose, through continuous, is not unlimited and therefore cannot be unleashed and used by the prosecution as they please,” said the accused.

The accused say prosecution failed to provide proof that the documents which they sought to produce were actually obtained during the first investigation which culminated into ACEC no.48 of 2018 and without such proof , the introduction of any documents by prosecution amounted to gross violation of high court decision which barred the prosecution from introducing any additional documents derived from further investigation which it purported to conduct last year.

Ojaamong in his affidavit said if the criminal trial is allowed to proceed on the basis of the impugned ruling, the accused person’s rights stand to be highly prejudiced.

“I urge the court to revise and set aside the orders of Douglas Ogoti issued on February 1,2019,” urged Ojaamong.

Early this year, high court dismissed prosecution application seeking to set aside trial court orders barring EACC from carrying out investigations in a case facing Busia governor Sospeter Ojaamong.

Judge John Nyabuto Onyiego dismissed the DPP application saying he did not find anything illegal, incorrect or improper in the trial court’s holding and finding , the prosecution’s investigations in the alleged forgery of documents would form basis of separate case.

”Accordingly, it is my finding that the application is not merited and the same disallowed and the original file be returned to the trial for proceedings to continue as scheduled,” ordered Judge Onyiego.

The judge said the trial court has wide powers to admit or not to admit certain evidence subject to the rules of evidence on admissibility.

Justice Onyiego further said it is not the duty of the high court to micro manage the court proceedings before the subordinate court.

“The court cannot for instance keep directing the lower court on which evidence to admit or not admit. A criminal trial is self contained in terms of procedure regarding admission of evidence,” ruled the judge.

The judge further noted said that, where the final verdict is not satisfactory to either to either party, the aggrieved party shall have a right of appeal.

Governor  Ojaamong and others  members of County  executives  have been charged  with conspiracy to defraud the county  of Sh 8 million by , engaging in projects without proper procurement process.

The charges against them states that on diverse dates between March 15 and September 25,2014 all the accused persons conspired to defraud the Busia county government of Sh 8 million by entering into an agreement for a feasibility study on solid waste management.

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