Director Of Public Prosecution Noordin Haji has filed an application seeking the lifting of orders stopping the prosecution of Judicial Service Commissioner Tom Ojienda.
Prof Ojienda was to be prosecuted over claims of obtaining money falsely from Mumias Sugar Company.
But he obtained orders stopping the intended prosecution.
In a reply filed in court through senior state counsel Wakio Mwamburi the DPP says that he was highly prejudiced by the court order prohibiting the investigations and prosecution of Prof Ojienda without the benefit of hearing from him.
DPP say that his office will demonstrate that the petition before the High Court by Ojienda is hopeless and lacking in material particulars.
He said the court should reconsider its position and lift the order.
“The order issued by Justice Chacha Mwita has effectively granted blanket immunity to the petitioner(Ojienda) for he cannot be investigated over any matter, pending the determination of the petition and yet annextures to the affidavit clearly demonstrate that the investigations giving rise to this petition was very specific and not open ended,” reads court document.
DPP denies having in any way violated any of Ojienda’s rights and freedoms adding that it is the duty o the state to prosecute any persons who injure the public through acts such as those brought against Ojienda.
“That as a demonstration of this commitment to the ideas of our Constitution requiring transparency and accountability, the DPP promptly made a decision to charge and communicated that decision to the public including Prof. Ojienda to avoid unnecessary speculation on the part of the affected Mumias Sugar Company, sugar cane farmers and the wider society to end any rumors or innuendo about the reasons why he was under arrest,” say the prosecution.
The DPP says that the attempt to draw JSC into woes bedeviling Ojienda is to create a wedge between the Judiciary and the respondents and invitation the court must resist.
“That the petitioner deserves no mercy from this court and should be left to go face his accusers before the trial court,” reads the court documents.
The DPP further says that it is not true that the order issued from search and seizure of documents did not specify the matter from which the intended search was to be conducted by his office.
Noor also says that Ojienda is utterly and blatantly economical with the truth for he alleges that they complied with the order for search and seizure under protest whereas his own counsel admits that there was no breach of confidentiality and privilege as alleged he alleges.
Justice Chacha Mwita while issuing the order early in January said that the petition by Ojienda raised constitutional issues which must be determined before any action is taken.
The Judge stated that Ojienda’s lawyers had demonstrated that the subject matter relates to a similar case in which the DPP and EACC appealed against the decision and is pending at the Court of Appeal.
His Lawyer Otiende Amollo also told the court that the subject amount was legal fees, which cannot be used to charge Ojienda.
“An advocates bill cannot be the foundation of a criminal charge. Whatever other avenue one wants to take, it cannot be criminal prosecution,” he stated.
