BY SAM ALFAN.
Embakasi North MP James Mwangi Gakuya and 10 others facing charges grafts charges relating to Sh 40million CDF project in their constituency have suffered a major blow after the High Court declined to temporary stop their further prosecution.
Justice Mumbi Ngugi of the Anti-Corruption High Court while declining to stay the proceedings before the trial court said that documents sought by the accused person was not important at the this stage to warrant the orders.
“I have the considered the application by defense and I don’t think the documents sought are important to the defense at this stage and i hereby decline to grant the sought pleas to stay the proceedings before the trial court pending hearing and determination of the application”, ruled Judge Ngugi.
This means that the trial of the case which was schudeled today will have proceed before the lower court for full hearing.
However, the trial did not proceed after it emerged that the MP is admitted bin hospital.
The accused persons filed application in the High Court seeking to review trial magistrate Elizabeth Juma’s decision that dismissed their application seeking to be supplied with investigation diary , Investigation report and copy of occurrence report book by the prosecution.
Prosecution vehemently opposed the application saying they were not ready to proceed with applications by the defence since they were not served with the ruling the accused are seeking the court to revise nor did they have opportunity to peruse the proceedings regarding the matter.
However Justice Mumbi Ngugi directed the matter to be heard on July 10 for further directions.
Last week on Tuesday the hearing of the case hit a snag after their lawyers disqualified themselves.
Gakuya’s Lawyer Danstan Omari are among the advocates 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.
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.
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.