Former Treasury Cabinet Secretary Henry Rotich and his co-accused want the court to acquit them of graft charges under section 210 of the criminal procedure code.
Through lawyer Philip Nyachoti, Rotich told the court that the Director of Public Prosecution has not established a prima facie case against them.
Nyachoti added that the DPP had abandoned the case against his client and his co-accused.
“The prosecution has not established a prima facie case against not only the 1st accused, but all the other accused persons. The prosecution intentionally and deliberately abandoned its case,” Nyachoti submitted.
In addition, Nyachoti urged the court to consider returning a verdict of guilty of serious dereliction of public duty against the office of the Director of Public Prosecutions.
In his submissions, the former CS told the court that prosecution was ill-advised from its institution and it was carried on the wings of extraneous political considerations.
The court heard that the case was not mounted on the cogency of evidence of criminal culpability and was bound to fail.
Rotich is charged with conspiracy to defraud the government of more than Sh 63 million in the Arror and Kimwarer dams scandal.
He is charged alongside former Kerio Valley Development Authority (KVDA) boss David Kimosop, former Chief Economist Kennedy Nyakundi, Jackson Kinyanjui and Titus Muriithi.
Rotich told the court he has had a long career as a public servant spanning over 25 years, rising through the ranks to become the first Cabinet Secretary for the National Treasury under the new Constitution, propelled by his integrity, honesty and hard work.
He said he has never committed any offence before and is not a person who would commit the awful crimes as alleged by the prosecutor.
It is a matter of judicial notice that during the campaigns for the 2022 General Election, rival political coalitions made political capital out of Arror and Kimwarer dam projects, giving a very clear indication that the prosecution was instituted for the wrong motives,” Nyachoti added.
He added that the narrative that money was lost or stolen was a fiction and the prosecution seems to have been in a fishing expedition hoping to catch the so-called “big fish” under a public opinion court mode.
“If indeed money was lost as the public was led to believe, how come the Asset Recovery Agency(ARA) has not been able to trace any stolen loot and freeze it?” He questioned.
The court heard that Rotich did not execute the two construction contract agreements both dated 5th April, 2017 and there was no Privity of Contract.
“Accordingly, the 1st accused could not properly or improperly confer contractual benefits to the joint venture companies,” Nyachoti submitted.
It was his argument that the funds branded stolen or termed by the prosecution as improper conferment of benefits were payment to SACE (an Italian export credit agency) for providing insurance cover to financiers; payments to lenders for interest; payments of commitment and loan structuring fees; and payments to contractor for mobilisation to site, all genuinely meant to facilitate implementation of the said projects.
“It is not surprising that the two governments, Italy and Kenya have reached an understanding to restart the projects that were stalled by bad politics and malicious prosecution,” the court heard.
