While submitting a prima facie case against the accused, Busia County Kenya Governor Sospeter Ojaamong and eight co accused, the State Prosecution informed the Anti Corruption Court that the accused should be placed on their defence.
Appearing before Nairobi’s Anti Corruption Chief Magistrate Douglas Ogoti at Milimani, the State in a humble submission urged the trial court that the evidence adduced by the State establishes a case to answer.
A prima facie case, in Mosley and Whiteleys law Dictionary 11th edition states that : when the evidence is sufficiently strong for the opponents to be called to answer it, and can only be thrown by rebutting evidence adduced by the opponents.
Governor Ojaamong together with his eight co accused were arrested by EACC Detectives on 03rd July 2018 and arraigned before Anti Corruption Court where they were charged with several counts of conspiracy to commit an offence of Economic crime, engaging in a project without prior planning, abuse of office, willful failure to comply with the law relating to management of funds, fraudulently making payments from public revenue for service not rendered, failure to pay taxes and fraudulent acquisition of public funds.
The State prosecution during the trial called twenty witnesses which included former Busia County Officials, serving Officials, Former Members of County Assembly and the Investigating Officers.
Governor Ojaamong, Bernard Krade Yaite, Leonard Wanda Obimbira, Allan Ekwenye Omchari, Samwel Oseko Ombui, Edna Adhiambo Odoyo, Renish Achieng Omullo, Sebastian Hallensben and the Company at the centre of controversy Madam R enterprise were charged and pleaded not guilty to several counts and freed on hash conditions by the trial Anti Corruption Chief Magistrate Douglas Ogoti.
On 01st April the year 2014 Busia Governor Ojaamong travelled to Germany in the company of former Busia County elected Members of County Assembly and other County officials, there mission was to study new technologies on solid waste management.
The trip that lasted for seven days in the developed State was fully paid by the ninth accused Madam R Enterprises limited which won the tender of feasibility analysis without further following the procurement Government process.
On 07th April the year 2014 Governor Ojaamong while in Germany tour unlawfully signed executed MOU between Madam R Enterprises Ltd and the County Government of Busia, where the County was to pay a whopping 8 Million Kenya shillings tax payers to their new business partner and also the accused for feasibility study on solid waste management .
A case of direct conflicts of interest taking into account that the Company facilitated their travel to Germany and again won a tender without following the due process of the law. All were done while in overseas even without discussing the major development with the County before the County Assembly floor for endorsement.
When the Governor Ojaamong initiated the project while in Germany on 01st of April the year 2014, the Company that won the tender to conduct feasibility study easily was not registered by then by the Country Registrar of Companies. The writing on criminal pleadings, Evidence and practise (1999 3rd edition) states that : offence of Conspiracy cannot exist without the agreement, consent or combination of two or more persons, there must be an agreement.
Madam R Enterprises Ltd which was paid 8 million Kenya shillings for feasibility study in early April 2014 was later Registered after a month on 08th July 2014 according to the database of the Registrar of Companies in Kenya and as per annual returns and the Directors of the Company were the seventh accused with 920 shares and the sixth accused with 1000 shares.
The time of signing the MOU by the Busia County Governor on behalf of County with the Controversial company MRE Ltd, the company was not in existence as the same had not been incorporated. Procurement section 26 (3) (a) was breached where it states that : all procurement shall be within the approved budgets of the procuring entity and shall be planned by the procuring entity concerned through an annual procurement plan.
The County Government of Busia unlawfully used the budgeted salaries of County casual workers to pay Madam R Enterprises Ltd the first instalment of 4 million Kenya shillings and the second payment to the same company was done on 25th September 2014. The trial Court was again informed that the Company at the centre of controversy deals with shoes and not solid waste management, where it was registered on 03rd May 2007 at Kisumu County and the nature of the business indicated as general hardware.
While submitting through his Lawyer Siaya Senator James Orengo, the Governor urged the trial Court to dismiss the case and acquit him including all the accused as stipulated in section 2010 of the criminal procedure code. The defence through Senator James Orengo stressed that the prima facie case do not arise against the charged nine accused. Referring to a case in the year 1940. The Magistrate must accept the whole of the evidence for the Prosecution at it’s face value, where there might be good grounds for rejecting some parts, or all of it and therefore it is necessary to weigh up the evidence and on so doing may be satisfied if unrebutted, it would warrant the accused conviction
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