State prosecutors have mounted an objection seeking to have a contempt of court sentence meted out on one of their colleagues for failing to secure witnesses for a six year old criminal case at the Milimani Law courts and submit that the magistrate who handed the penalty erred in her decision to hold the prosecutor in contempt.

Willy Momanyi was sentenced to spend a day in the cooler and in addition pay a fine of Ksh25,000, in default five days in jail, for contempt of court by  Milimani Law Courts resident magistrate Ms Tobiko Sinkiyian after witnesses failed to show up in a case where a former National Council of Non-Governmental Organisations Philip Okeyo is charged with stealing over Sh11 million.

The state counsels say though the contempt of court Act grants subordinate courts powers to punish on the face of the court, it also sets out the circumstances and peculiar instances when the whip can be cracked.

They also question if the magistrate’s court has inherent power and jurisdiction to make such a finding.

“Prosecuting counsel in discharging their duties act as ministers of justice…” Alloys Kemo submitted.

He wondered how Momanyi was being held personally liable when witnesses failed to attend court.

Kemo said Momanyi’s case may instill fear in discharging duty is a free and fair manner.

Scenario was created

The state counsel faulted the magistrate who jailed Momanyi saying she acted “the witness, prosecutor and judge at the same time,” and that Momanyi was condemned without being given a hearing.

Kemo said that a scenario was created such that when the matter goes to appeal, there would be nothing to guide court on what transpired at the magistrate’s court.

“All steps were not followed by the trial magistrate…the court acted in haste and in express contradiction of the law,” Kemo submitted.

Kemo said that a scenario was created such that when the matter goes to appeal, there would be nothing to guide court on what transpired at the magistrate’s court.

The prosecutors are asking the high court review  and quash the orders that were given by the trial magistrate and find that they were “unprocedural and against the interest of justice.”

“There is absolutely no evidence to point him(Momanyi) to such contempt….” they submit.

Quash the sentence

The application is pending determination at the High Court’s criminal division.

Okeyo is charged alongside two others — Simeon Sagana Kanani and Lucas Chacha Matiko.

They are said to have stolen Sh11,793,453 on diverse dates between September 12, 2008 and June 26, 2009.

 Okeyo has been separately charged with conspiracy to defraud the NGOs council the millions by creating fictitious meetings held across the country within the same period.

He has also been accused of false accounting.

State prosecutors led by Eddie Kadebe moved swiftly to have the prosecutor freed and obtained a stay pending a appeal by filing an urgent application before the High Court’s criminal division to quash the sentence.