BBY NT CORRESPONDENT.
The hearing of the Sh 40 million CDF case against Embakasi North MP James Mwangi Gakuya and 10 others hit a snag on Tuesday after their lawyers disqualified themselves.
Gakuya’s Lawyer Danstan Omari are among the advocates that recused themselves from the case after the trial magistrate Elizabeth Osoro Juma declined to adjourn the matter pending the outcome of an appeal in the High Court.
Other lawyers who recused themselves are Kiraithe Wandugi, philip Magal, Professor Wajakoya, Duncan Okatch, Shadrack Wambui and Stanley Kangahi.
Further the MP and his co-accused failed to bow to magistrate pressure to proceed with their graft case without being represented by their advocates who all withdrew from acting for them.
Gakuya through Lawyer Omari had informed the trial magistrate they had appealed her ruling delivered on June 17,2019 and the matter is coming up for hearing on Tuesday next and there was a need for adjournment pending the outcome.
However, the magistrate decline a move that prompted the lawyers to withdraw their services.
The lawyer decision angered the magistrate who ordered the accused to proceed without their lawyers but they declined and urged to be given more time to appoint new lawyers to represent them.
Osoro directed the matter to proceed in the afternoon but the accused were not ready claiming they are not familiar with the proceedings and needed lawyers to defend them against the charges.
The trial magistrate bowed to accused plea and gave the one week to look for new advocate after their lawyer ceased to act for them on Tuesday Morning.
Defense has filed an application before the high court seeking to be supplied with a copy of the investigation diary, investigation report and a copy of the occurrence book report.
This is after the trial magistrate dismissed the defense application saying that the prosecution has an obligation to disclose evidence upon which it intends to rely and make available to the defense all material relevance to the case in their possession upon which they do not intent to rely on.
They argued the said determination by the trial Magistrate Osoro will be prejudicial to the accused in their defense and further occasion a miscarriage of justice as there is reasonable cause to believe that the investigation diary, the investigation report and the relevant extract of the occurrence book has material which might be reasonably expected to assist the defense or undermine the prosecution’s case.
Further the accused persons says that the information sought by them from prosecution is obsoletely necessary and crucial to their defense and investigating officer has duty to record and retain all material gathered in the cause of the investigation in the investigating diary.
“The inspection of the said documents is necessary in determining it’s value and in determining which other material that might undermine the prosecution’s case or assist the defense case has not been disclosed by the prosecution,” reads the appeal papers.
The MP and his co-accused moved to the High court after being dissatisfied with the whole ruling of the ruling of trial magistrate delivered on the June 17, 2019 in Anti-Corruption Court.
They argued the trial magistrate erred by holding that the accused are not entitled to be supplied with the investigation diary, investigation report and a copy of the occurrence book.
“The learned magistrate erred in fact and in law by holding that the accused must disclose their intended use for the investigation diary, investigation report and a copy of the occurrence book prior to the same being availed”, says the accused.
They further argued that the trial magistrate erred in fact and in law by holding that the three documents requested need not be availed to the accused if it does not form part of the evidence that the prosecution intend to rely on.
MP Gakuya has since denied fraud charges relating to tenders for repair of roads in his constituency.
Gakuya together with members of tender committee for the Embakasi North CDF denied a total of 27 counts in relation to procurement of tenders to several companies, where he is alleged to have an indirect private interest.
Gakuya denied four counts of conflict of interest after he allegedly awarded some companies linked to him the works totalling to Sh39 million.
Prosecution alleges that the MP awarded the contract for construction of Muoroto Road in Embakasi to Mabaks Enterprises.
The tender was allowed allegedly worth Sh11.6 million yet the MP, who is the patron to the CDF knew that he has an indirect private interest to the company.
Other companies that allegedly benefited are Hunyu Bush Clearing & Nurseries and Tresmu Investments ltd, which got tenders for construction of DO’s Road and Cinema road in the constituency.
It is alleged that he committed the offences between Match 23, and September 5, 2015 at the Embakasi Constituency CDF offices.
The court also heard that Gakuya together with Patrick Waruingi, being the proprietors of Mabaks enterprises allegedly received a total of Sh19.6 million.
In the case Gakuya is charged alongside Waruingi and Salome Nduta Kamumui through Tresmu Investments are alleged to have fraudulently acquired a total of Sh12.5 million.
Leah Waithera Guchu, the Embakasi North CDF account manager denied six charges of failing to comply with laws relating to management of public funds.
Cleophas Omariba Oyaro, an acting City County Accountant also denied similar charges, for clearing the payments to the companies.
