Magistrate in critical graft cases moved to Keroka

Monday, February 12th, 2024 02:42 | By
Anti-corruption senior Principal Magistrate Eunice Nyutu during a past court hearing. PHOTO/Charles Mathai
Anti-corruption senior Principal Magistrate Eunice Nyutu during a past court hearing. PHOTO/Charles Mathai

A magistrate who has been handling critical corruption cases in which she has been rebuking the prosecution has been transferred out of Nairobi.

Senior Principal Magistrate Eunice Nyutu has been raising the alarm over what the Law Society of Kenya President Eric Theuri has described as “prosecution-assisted acquittals.”

The magistrate who presided over the Sh65 billion dams case against former Treasury CS Henry Rotich has been transferred amid claims that the decision may have been triggered by her refusal to terminate the suit at the initial stage.

She was attached to the special purpose Anti-Corruption Court at the Milimani Law Courts in Nairobi, is now headed to Keroka Law Courts.

The magistrate has had run-ins with the Office of the Director of Public Prosecutions (ODPP) over the withdrawal of high profile cases, a move he has quite often blocked.

The magistrate had on several occasions accused the ODPP of frustrating prosecution of high-profile cases through intimidations and sabotage and went to as far as proposing the formation of an independent body to oversight the prosecutions agency in a bid to control it from abuse of power.

The revelations comes days after the magistrate has recently been in the news over her bold decision to stop the Office of the DPP from dropping multiple high- profile cases most of which involve close allies of President William Ruto.

In the last six months Nyutu rejected attempts by the DPP to drop cases against Rotich, former KRA boss Antony Mwaura and former Devolution Principal Secretary Lilian Omollo at the initial stages.

Following her disclosure during the acquittal of former Nairobi governor Mike Sonko and KRA boss and 15 others, a number of lawyers were quick to allege that Nyutu’s transfer from Nairobi to Kisii had to do with her move to block the state’s move to drop charges against President Ruto close allies.

Nyutu had on several occasions last year declined a plea by the DPP to withdraw the multi-billion Arror and Kimwarer dams scandal case against former the Treasury CS who was recently appointed as President Ruto’s Economic Advisor.

Lacked merit

The move angered the DPP who had multiple applications both in the lower high court, to have Nyutu barred from handling any case against Rotich.

At some stage Nyutu had also dismissed the DPP’s application asking her to disqualify herself from the Rotich case as one that lacked merit, an abuse of the court process and dismissed it.

“It is my finding that the application for recusal was calculated to compel the court to grant an adjournment in the case and this amounts to abuse of the court process. The upshot is that the application for recusal does not meet the legal threshold and the same is dismissed in entirety,” Nyutu ruled.

While throwing out the application, Nyutu noted that recusal application should not be used by litigants for intimidation, insubordination, blackmail, arm twisting of a judge or magistrate in conforming with a litigant’s whims or to throw him or her into panic.

According to the magistrate the DPP’s motives if allowed would have dire consequences of shipping away the independence and integrity of the court.

On the allegation that the court had been compelling the prosecution to proceed with Rotich’s case, the magistrate ruled that it was for the state prosecutor to prosecute the case without holding any ransom
Nyutu said that as soon as a case lands in court, it ceases be an individual’s matter where any party can do with it whatever he or she please with it as it becomes the business of all stakeholders involved.

“Each must play their role for justice to be done. No stakeholders should hold the rest at ransom to a point that the rest of the stakeholders cannot discharge their roles.

In this case the accused persons, defence lawyers, the prosecution counsel, investigators and judiciary officers, the court staff, counsel holding brief for interested parties and witnesses have all been attending court diligently.

All players are always sitting in court ready to proceed. But all the court is informed time and again is that there are verbal instructions requiring the trial to be suspended awaiting further directions from the DPP,” Nyutu had said then .

Nyutu had also issued a warrant of arrest to Arror and Kimwarer dams witnesses including the whistle blower former Cabinet Secretary Peter Munya.

In one incidence, the High court had put the DPP on the spot for blackmailing, threatening and intimidating a magistrate hearing the Sh63 million Arror and Kimwarer dams case.

In a detailed ruling rendered by Justice Nixon Sifuna, the High Court took issue with the manner in which the prosecutors in the case had been intimidating and blackmailing the trial court magistrate Nyutu in an attempt to have her disqualified from the case or allow an adjournment to await the for the appointment of new DPP Renson Ingonga to review the charges against Rotich and his co-accused persons.

Justice Sifuna said it was unfortunate for the ODPP to file three applications in court to have magistrate Nyutu removed from handling the Sh63 billion dams case.

Negative energies

“This is therefore a three-front military like attack, as all the three applications are ostensibly aimed at frustrating and eventually ousting the trial magistrate from the case.

These incessant, sustained and almost nonsensical persistent adverse efforts by the prosecutor, are in my view among other ulterior motives, calculated to oust the learned trial magistrate from the case ostensibly for her firm stand on procrastination and match-fixing by the prosecutor,” Justice Sifuna had ruled.

“The other two applications and this instant application together with the prosecutor’s other negative energies, were made in respect of the same trial proceedings and targeted the same judicial officer (Nyutu).

These were for motives other than the promotion of the rule of law, the protection of rights and the administration of justice.

They are manifestly made in bad faith. With the pre-meditated intention of intimidating, blackmailing, arm-twisting and frustrating the trial magistrate to subdue her into dancing to the prosecutor’s whim. To put her at his beck and call,” the Judge added.

Justice Sifuna called out State prosecutor Geoffrey Obiri and ordered him to issue a verbal apology to Nyutu over his conduct in the matter.

“This Court having found Mr Obiri’s conduct in those proceedings condescending, inappropriate, unethical and uncalled for, I hereby order him to tender an unconditional verbal apology to the trial court when it resumes sittings, and thereafter prosecute the case by his public duty as a public prosecutor and the professional ethics of the legal profession,” Justice Sifuna ordered.

Nyutu had also been at loggerheads with the office of the DPP after she also declined its plea in August last year to withdraw the NYS case involving Sh226.9 million that faced former Youth Affairs PS Lilian Omollo.

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