The basis of their request was the promotion of previous magistrate Lawrence Mugambi to a judge of the High Court last year.
Following the promotion of Mugambi, the case was allocated to a new magistrate Victor Wakumile at Milimani Law Courts in Nairobi.
Appearing before Wakumile, Obado and his co-accused persons urged the court to allow the case to start afresh on grounds that the magistrate needed to do his own assessment of the evidence and have the opportunity to see the demeanour of prosecution witnesses.
“Section 200 of the Criminal Procedure Code (CPC) gives the accused persons the right to elect how to proceed before a new judicial officer. Either to proceed from where the hearing had reached or start de novo (afresh). In this case, the accused have elected afresh hearing,” Defence lawyer Peter Ario told the court.
“The incoming judicial officer does not just take evidence from witnesses but also looks at the demeanour of the witness. No prejudice will be suffered if this trial starts afresh,” he stated.
But In a brief ruling, Wakumile rejected the bid by Obado and his co-accused persons to have the case start de novo saying they will suffer no prejudice as the first witness in the case has not concluded his evidence in chief.
“To me starting again this case will be an affront of the judicial proceedings, I, therefore, order the case to proceed from where it had stopped and proceedings in the matter should be typed to enable the court to familiarise itself on the previous proceedings,” Magistrate Wakumile stated.
He said the provisions of Section 200 of the CPC were not mandatory and that considering the matter had taken long in court, starting afresh would amount to delaying justice.
“Parties agree that provisions of section 200 of the Criminal Procedure Code (CPC) are not coined in mandatory terms. It has taken two years to hear part of the testimony,” magistrate Wakhumile said.
“If we start de novo (afresh), it will take a long time and infringe Article 159(b) of the Constitution, which provides that justice will not be delayed. Starting afresh will be an affront to Article 159(h),” he ruled.
The magistrate observed that the case was still at the preliminary stages of the hearing since the first prosecution witness was yet to conclude his evidence.
“As for demeanour, the witness is not yet done and will still come to court. Also, chances are that if we start afresh, it will infringe on the constitution under Article 159,” the magistrate said.
The section of the law says that justice shall not be delayed. The case will be mentioned virtually on April 25 when hearing dates shall be set.
The family was first charged in 2018 and the state has lined up 59 witnesses to testify.
The court heard that since January 2020, the first prosecution witness is still on the stand.
The first prosecution witness Robert Rono is the investigating officer in the case. His testimony has taken two years since January 2020 but is still halfway.
But prosecutor Eva Kanyuira opposed the application to have the matter start afresh, saying it was in the interest of justice that the case is concluded in the shortest time possible.
She said the trial was moving at a slow pace because of language hitches and bulk documents in the custody of the investigating officer.
She said that one of the accused, Peninah Auma, does not understand English or Kiswahili and the court proceedings have to be interpreted to her in Luo language.
“There are minimal documents that are yet to be brought to the court’s attention. The Bulkiness of these documents is one of the reasons the Director of Public Prosecutions is urging the court to proceed with the matter from where it had reached. You also noted that we have to invite an interpreter in these proceedings, which is one of the reasons the testimony of the first witness has taken so long. Due to that technicality, we urge the court to consider having this matter proceed,” Kanyuira informed the court
The prosecution dismissed the basis of gauging the witness’s demeanour saying the prosecution was still on the first witness whose testimony was halfway and that the court will still get an opportunity to see and observe the said witness.
“Your honour you will also note from the proceedings the bulkiness of the documents involved is another reason we want this matter to proceed from where it had reached,” the prosecutor said.
In the case, Obado is charged alongside his four children Dan Okoth, Scarlet Okoth, Jerry Okoth, Evelyne Okoth, his alleged close associate Jared Kwaga, Joram Opala, Patroba Ochanda over defrauding the Migori county government at a total of Ksh505.6 million.
Others are Christine Ochola, Peninah Auma, Carolyne Anyango, Tarchdog Printers Ltd, Kajulu Business Ltd and Dolphus Softwares Ltd
The county boss and his co-accused face 26 charges ranging from conspiracy to commit economic crimes, conflict of interest, unlawful acquisition of public property and money laundering.
According to the prosecution, Obado and his co-accused engaged in a complex scheme of money laundering where the companies were awarded contracts and got payments worth millions of shillings that were wired back to the governor through his children who were studying abroad.
