By Sam Alfan.

Former Kenya Union of Savings & Credit Cooperatives (Kuscco) chief executive officer George Ototo wants several people ordered to appear in court for questioning in relation to their prosecution.

Ototo and his co-accused sought the summoning of two top officials of Kuscco alongside city lawyer Cecil Miller and the Director of Public Prosecution for questioning.

In the application, Ototo together with George Mwangi, George Ototo, George Ochola, Jackline Atieno and Mercy Muthoni also sought the summoning of Kuscco Executive Secretary Caroline Kaburu,  Housing Funds Manager Pamela Wachira and Miller.

They have also sought to question inspector  Moses Adeli of the Directorate of Criminal Investigations, for alleged financial inducement received to institute the criminal proceedings against them.

“The Court can issue a summons to the persons requiring his or her attendance before the court or requiring him or her to bring and produce to the court for the purpose of evidence all documents and writings in his or her possession or power which may be specified or otherwise sufficiently described in the summons,” the application stated.

The accused persons have also asked the court to order Caroline Kaburu and Pamela Wachira, both of whom are employees of KUSCCO to furnish them with all the documents of all payments made to officers from the DCI, employees of the Office of DPP and Miller & Co. Advocate, in relation to the investigation leading to the institution of the case against them.

Through lawyer Apollo Mboya, the accused persons argue that court is duty bound to ensure that every act which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree.

“The Court is duty bound to safeguard against abuse of prosecutorial powers including in instituting or continuing prosecutions through corrupt motives or inducement,” Mboya stated in the application.

The five accused persons argued that they have in their possession documents indicating that Caroline Kaburu, an employee of KUSCCO paid financial inducement to Adeli and team from the Office of the DPP to purportedly support filing, printing and logistical expenses related investigations and prosecutions of their case.

“The Applicant is also seized of documents indicating that Pamela Wachira recommended payment of Sh12.5 Million to be made to Mr Cecil Miller & Co. Advocates watching brief for KUSCCO for a range of services pursuant to a Service Level Agreement between KUSCCO and the Law Firm,” stated the application.

They argue that section 4 of the ODPP Act mandates the DPP to fulfill a number of key obligations among them, the need to discharge the functions of the office on behalf of the people of Kenya.

The DPP is also mandated to serve the cause of justice, prevent the abuse of the legal process and public interest and also promote the rules of natural justice.

They further submitted that the ODPP Guidelines on The Decision to Charge, 2019, provides that prosecutors must not knowingly participate in, or seek to influence, the making of a decision in regard to any case where their personal or financial interests or their family, social or other relationships would reasonably appear to influence their conduct as prosecutors.

They argue that when making the decision to charge, the DPP and prosecutors must not be influenced in their decision by financial interests or inducements.

“Charging decisions by the Director of Public Prosecution and prosecutors must act in the interest of justice and not solely for the purpose of obtaining a conviction,” state the five in the application.

They argue that the documents, information and testimony is necessary for the accused to mount a defence and for the Court to satisfy itself on the process leading to the institution of these proceedings and promote the ends of justice.

In the supporting affidavit lawyer Mboya stated that the documents, information and testimony is necessary for the accused to mount a defence and for the court to satisfy itself on the process leading to the institution of these proceedings and promote the ends of justice.

They argue that the court is duty bound to safeguard against abuse of investigative and prosecutorial powers including in instituting or continuing prosecutions through corrupt motives or inducement.

“It is in the interest of justice that those responsible for the said payments and the recipients of the funds are summoned to inform the court on how much was paid to institute this prosecution, to provide the names of the recipients of the funds and the purposes to enable the court to satisfy itself that there was no corrupt inducement leading to the investigations and charging decision,” says lawyer Mboya in the affidavit.

He said the application raises an important issue in the administration of justice as the accused persons are entitled to have the information to ensure that recipients of the said funds are not the ones who investigated and are prosecuting the matter before the court.

They said at the time of taking a hearing date, the information on these payments were not available to them.

They have attached a letter from Caroline Kaburu addressed to the group managing director requesting processing of Sh.100 million being facilitation for the DCI Unit and the team from the Office of the ODPP to support filing, printing, and logistical expenses related to the Union’s ongoing investigations and prosecutions.

Ototo is charged with conspiracy to defraud the institution of over Sh82 million from the Sacco.

Mwangi, Otieno, Owino, Atieno and Muthoni are charged with stealing Sh83 m from the lender.