EACC has no mandate to prosecute me says, says Lamu West MP
28 July 2015, 11:35
Mombasa - Lamu west legislator, Julius Ndegwa has made an application requesting the court to cancel a corruption case leveled against him and six other members of the Lamu CDF board.
Ndegwa's lawyer, Danson Mungatana informed the court that there was non-compliance in the case since the EACC had been disbanded following the resignation of three commissioners.
The seven were charged for fraudulently transferring KES 1.67 million to the Lamu CDF office account between July and October 2013, money that had been allocated for the construction of Witu livestock cattle dip.
They faced a second count of irregularly re-allocating CDF funds and misappropriation of the CDF cash contrary to section 48 of the CDF Act.
The MP was also charged for misuse of office by allocating himself KES 1 million.
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“We base our preliminary objection on a simple fact that a dead person cannot bring proceedings in a legal court,” said Mungatana.
Mungatana said the EACC is like a dead person adding that the accused would be disadvantaged in case the court nullifies the case when suing for malice.
Mungatana further added that investigations conducted after the resignation of Commissioner Mumo Matemu were illegal.
"The investigations that were conducted after the resignation of Matemu are null and should not be used in this case,” said Mungatana.
However, the DPP objected the defense preliminary objection.
Senior prosecution council, Alexander Muteti informed the court that EACC was a registered body with mandate to investigate and prosecute.
He said the resignation of Mumo Matemu and other commissioners does not render the commission non-functional as portrayed by the defense counsel Mungatana.
He further informed the court that article 57 of the constitution does not subordinate the DPP to EACC noting that the charge was proper before the court under the criminal procedure code.
“A commissioner in any commission has an option to resign if he feels so; that does not mean that the function he undertook with the commission are dismissed. I wonder how the resignation of Matemu will prejudice the case,” said Muteti.
The prosecutor, Nicholas Gitonga argued that it was wrong for the accused to state that there was non compliance in the case yet Lamu residents and the CDF office had adversely been mentioned in the matter.
The case will be mentioned on September 30, 2015.
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