Former National Youth Service Director General, members of the Ngirita family and six others implicated in the Sh 469 million NYS scandal wants Anti-Corruption Chief Magistrate trying the matter to recuse himself from hearing and determining it.
The accused, Richard Ndubai, Lucy Ngirita, Ann Ngirita, Phyllis Ngirita,Jeremiah Ngirita, Sammy Mwangi, Evans Kundu , Welenalo Mulupi, Sophy Kanyua, Ferdinand Odonyo and Don Kariungi accuse magistrate Douglas Ogoti of being biased against them.
Through lawyer Julius Migos Ogamba, the suspects are of the view that the magistrate will not allow fairness and impartiality to prevail during the hearing and determination of the case leading to an injustice.
In an affidavit sworn by Ndubai, Ogoti is accused of compelling them to proceed with the pre-trial process regardless of the fact that he was made aware that the documents to be relied on by the prosecution were not yet supplied to the defence, contrary to the law.
He say after the issues were raised by the defense lawyers, the magistrate said he will deliver the ruling which was delivered on 12 of June where he addressed the concerns raised.
In his ruling on the same, the magistrate ruled ” Pre-trials are not cast on stone, had the defense allowed first pre-trial to proceed , they would have realized that though there concerns were genuine, which I agree they “fears” were unfounded “.
It is the applicant’s argument that the court stated the charges against them are worse than murder despite such a comparison having no basis in law or fact.
Further, the magistrate is accused of relying on social media as one of the grounds for denying them bail and thereby introducing extraneous unverified facts. The court is further accused of relying on social and print media without interrogating the veracity of the information.
”Social media has already tried and found us guilty of the charges and such, a reasonable perception arises that justice will not met due to the predetermined mind of the court.
Ndubai says that the court had already prejudged the accused persons to be guilty of the offences they were charged with and that such offences lead to death, anarchy and threat to National security despite the prosecution not leading any evidence in support of that determination.
In his decision to deny the accused persons bail, Ogoti stated the following….”Those actions led to economic sabotage and deny Wanjiku (common citizen) basic rights including but not limited to education, good health, food, employment shelter and leads to death; the court takes judicial notice of the that social media has been airing instances of economic crimes on almost a day today basis….”
“The above finding has no basis and fact but only goes to show the court is biased and justice will not be met if this court will proceed with the hearing of this matter” says Ndubai.
According to him, despite the fact’s that the magistrate is under constitutional duty to safe the rights of accused persons throughout the hearing and is therefore biased since after denying them bail, he allowed various bail applications in other matters that followed.
“The court seems to want to trample on the rights of the accused persons since it already has a predetermined outcome that seeks to achieve and defeat the ends of justice” says Ndubai.
The applicants are charged alongside former PS Lilian Omollo and 34 others with several counts of offences including abuse of office, fraud and conspiracy to commit corruption.