The two managing directors of Binlaw Construction company have raised a fresh objection against their prosecution in a case they are accused of attempting to swindle the government of Ksh 294,443,904.
John Moguche and Thomas Mututi Oyunge claim a witness, Anthony Mbiu Kamuyu would give evidence on certain documents that may prejudice the outcome of their corruption case and want him disqualified from the list of prosecution witnesses.
They are questioning the eligibility of the witness and have evoked various sections of the law that may cushion them.
Acting in good faith
The prosecution though thinks otherwise, and states that the suspects relied on the documents in a civil case and cannot now demand that the same privilege be denied in the criminal case they face at the Anti- corruption court in Nairobi.
“If the defence was genuine in keeping these documents as privileged, the same ought bot to have left the custody of the advocate. The defence cannot seek the benefit in one court using the documents and deny the other court the same benefit if acting in good faith,” senior assistant DPP Emily Kamau said in a rejoinder.
They face several charges relating to the alleged forgery and alteration without the authority of an arbitrator an award of Ksh97,176,206.
The case is one of the oldest high profile cases still clogging the system and it is projected to be wound in June.
A ruling on this new objection, a third in a series, is to be made at the end of February 2018.
The offences were committed between 2002 and 2009, court documents state.
In 2009 Binlaw was granted leeway to enforce a KSh271 million arbitration award won against the Ministry of State for Special Programmes in October 2002.
Binlaw Construction Company had moved to court seeking orders to compel the Government to pay the settlement arising from the El Nino emergency project.
The construction company had been engaged to rehabilitate the Mount Elgon District water supply and sanitation facilities but was not paid upon completion of the work.
Binlaw Construction then had submitted in court that an Adjudicator Engineer Desmond John Otho Fitzgerald directed the Government to pay KSh97 million to the constructor after a tribunal ruling of May 24 2002.
And on October 31 2002, an arbitrator Engineer Joseph Thuo upheld Fitzgerald award and again said the government should pay the construction firm KSh97 million as per the terms of the contract.