BY SAM ALFAN.
Director of Public Prosecutions has appealed against a decision by trial Eunice Nyutu refusal to recuse herself and withdraw charges against former treasury CS Henry Rotich.
The former Milimani anti-corruption chief magistrate declined to disqualify herself from the case last year and instead proceeded to acquit Rotich and eight others for lack of evidence.
The DPP’s office, however, has faulted the magistrate who has since been transferred to Keroka law courts, for dismissing the application to recuse herself from the case and withdraw the charges against Rotich and co-accused.
“The appellant (DPP) prays that this court quashes and set aside the trial magistrate’s ruling declining to recuse herself from the matter,” said the ODPP.
The prosecution said that the trial magistrate erred in law and fact by misapplying principles of Judicial Independence and prosecutorial independence.
The ODPP faulted Nyutu for considering irrelevant facts in application for recusal and misapplying the test and or threshold for the recusal of a court where such application for recusal has been made.
The no-nonsense magistrate, Eunice Nyutu has dismissed several applications seeking to terminate cases pending before her.
Although the dismissal won her accolades for her tough stance, many were not happy especially those who were set to benefit from the discontinuation of their cases.
The magistrate has since been moved to Keroka law courts in Nyamira County.
Among the cases handled by Nyutu is the trial of former Nairobi governor Mike Sonko and Kenya Revenue Authority chairman Anthony Mwaura and the trial of the former Treasury CS Henry Rotich.
In the Rotich matter, Magistrate Nyutu summoned and even issued a warrant of arrest against former cabinet secretary and Meru Governor Peter Munya after refusing to appear in court to testify.
The prosecution, however, frustrated the trial by refusing to lead the witnesses in giving their testimony.
She later acquitted all the accused persons for lack of evidence.
The magistrate further declined Prosecution case to withdraw charges against Kenya Revenue Authority chairman Mwaura, his wife and companies in a case he was charged alongside former Nairobi Governor Mike Sonko.
In the case, the magistrate didn’t hesitate to condemn Prosecution conduct. She further recommended parliament to come up with policies on how to hold individual prosecutors accountable for failure to discharge their duties as required during trial.
Before these two cases, the magistrate had declined to withdraw charges against a Chinese businesswoman who has been charged alongside her husband in a multibillion scandal.
Magistrate Nyutu dismissed the application by the Director of Public Prosecution Noordin Haji, seeking to drop charges against Zhang Jing saying there was no new material that informed Haji’s decision to withdraw the charges against her.
“I am, therefore not convinced that there is new material that informed the dropping of changes against her as contrasted with other accused persons with similar circumstances to her,” ruled the Magistrate Nyutu.
