Machakos Senator Johnstone Muthama wants lawyer Paul Muite disqualified from a case in which he is accused of illegally grabbing and selling part of the 5,000-acre Malili Ranch.
In a sworn affidavit filed in court Monday, Muthama through lawyers John Khaminwa, Haroun Ndubi, Anthony Oluoch and Kethi Kilonzo sought to have Muite disqualified from the proceedings as he was the one who recommended his prosecution.
Muthama noted that Muite was appointed special prosecutor to investigate complaints by shareholders of Malili Ranch and he recommended to the Director of Public Prosecutions (DPP) that he be prosecuted alongside others over the sale of land in the ranch.
"In view of the letter dated February 23, the special prosecutor Paul Kibugi Muite should be disqualified from the proceedings as it is his legal opinion that informed the exercise of discretion by the DPP that is now being impugned," he submitted.
He added that although the DPP had the discretion to determine whether or not to prosecute a person, that decision must be exercised judiciously and should be informed by facts and the law.
"The letter of February points to the wrong exercise of discretion by the DPP. That exercise of discretion was informed by the legal advice of the special prosecutor, Muite," submitted Muthama.
However, Muite argued that the application to have him disqualified should be thrown out.
"The applicant has filed the additional affidavit this morning and we have not had time to go through it. We have been ambushed. The affidavit should not be admitted," he said.
However High Court Judge George Odunga allowed the application arguing the matter before the court was of public law and its determination could not necessarily be based on technicalities.
Muthama and former PS Bitange Ndemo, among others, are facing charges over the sale of the ranch following complaints by shareholders.
The matter will be heard this morning.
