NAIROBI, Kenya, Aug 17 – Former Transport CS Michael Kamau has filed an application in the High Court challenging his prosecution over the Sh33 million tender award for a road construction in Bungoma County.
Kamau says the present charges are premised upon an illegal and unconstitutional directive from the Office of the Director of Public Prosecutions and cannot stand against him.
“The trial court failed in its duty to observe and consider that the charge sheet and the charges framed against me were not lawful and did not pass the constitutional muster. Instead of taking a proactive role in the observance, respect and protection of my rights, the trial magistrate abdicated duty by behaving as though he was merely a conveyor belt,” he says.
In July this year, the former CS was charged with abuse of office and willful failure to comply with applicable procedures and guidelines relating to the management of public funds.
The particulars of the charges indicated that Kamau on March 15, 2008 willfully failed to comply with the set rules by ignoring the design of Kamukuywa-Kaptama-Kapsokwony-Sirisia Road done by Engiconsult Limited at a cost of Sh33,303,600 and entering into a memorandum under which the resident engineer redesigned without due process.
He denied the charge sand was released on a cash bail of Sh500,000.
Kamau in his court documents now claims that charging him with unspecified “failure to comply with applicable procedures and guidelines relating to the management of public funds” and unspecified failure “to comply with chapter 5 of the Government Financial Regulations and Procedures” the EACC and DPP do not know what specific offence he is being accused of or alleged to have committed.
He contends that the charges framed against him show a lack of proper foundation for his prosecution in that they are defective and lack specificity.
“The lack of specificity in the charges brought against me show that there is no proper foundation for my prosecution,” he says.
Kamau also claims there has been an inordinate lapse of time since the time when the offence is alleged to have been committed, and the time when a complaint was allegedly made, and the time when the charges were brought before court.
According to the court documents, the EACC through the DPP brought similar charges against Kamau on June 2015 and evidence that gave rise to the present impugned charges.
His prosecution based on the previous charges in 2015 were prohibited by the Court of Appeal.
Kamau says soon after the Appeal Court rendered its decision on the previous charges, the DPP on October last year wrote to and directed the EACC to ‘complete the review and reconsideration of inquiry files against him and to submit the same within 21 days with a fresh statutory report.’
Kamau contends that such a directive was illegal, unconstitutional and that his present charges are premised upon an illegal and unconstitutional directive and cannot stand.
“Furthermore, the EACC did not and could not have undertaken any investigations before recommending the present charges against me.”
“The present prosecution is not based on any objective prosecutorial policy or basis but rather on an ulterior and extraneous purpose unconnected with redress of alleged crime,” he says.
Kamau now wants the court to stay his criminal proceedings and declare that his prosecution is tainted with illegalities and contrary to the constitutional public policy interest.