The standoff between the Ethics and Anti-Corruption Commission and the Director of Public Prosecutions, played out in court Thursday over the withdrawal of a Sh42 million graft case facing former officials of Geothermal Development Company.
The DPP wants charges against some three accused persons withdrawn but the anti-graft agency wants the case to proceed to its conclusion and be heard on a priority basis as had been ordered by the Supreme Court in February last year.
The DPP has recently been in the spotlight for withdrawing high profile cases instituted at the anti-corruption division.
Courts handling these matters have also expressed their frustrations accusing the ODPP of neglecting their duties.
Magistrate Eunice Nyutu has on several occasions said it is time regulations were enacted to rein in prosecutors who neglect their duties.
These policies she said, will ensure prosecutors are held for any civil liability that may arise from withdrawal of cases.
She made the remarks when the DPP bungled the Arror and Kimwarer dams case and the recent Sh357 million graft case facing former Nairobi governor Mike Sonko.
The emerging trend of withdrawals and acquittals has cast aspersions on the office of the DPP begging the question why the ODPP proceeded to commence proceedings without existence of evidence to support their cases.
The latest case is the one before Trial Magistrate Thomas Nzyuki involving the GDC officials.
In an application dated February 13, the DPP seeks to have the charges against Nicholas Karume Weke, Peter Ayodo Omenda and Caleb Indiatsi withdrawn under section 87 (a) of the criminal procedure code.
The three were charged alongside six others before the chief magistrate anti-corruption division in 2015 with various offences relating to the procurement of rig move services on behalf of Geothermal Development Company.
They had been accused of illegally awarding a Sh43 million rig move services tender to Bonfide Clearing and Forwarding Ltd.
But before the matters were heard and determined, the accused challenged their prosecution at the High Court.
They argued that the charges were based on a non-existent provision. The High Court subsequently quashed the trial proceedings.
Aggrieved, the state appealed and the Court of Appeal overturned the decision. The matter went all the way to the Supreme Court where the judges directed it proceeds on a priority basis.
The ODPP now claims to have received requests from Weke seeking a review of the evidence in the matter.
“Upon review and the issues raised by the first accused person, it came to our attention that there was insufficient evidence to confirm that the rig move price was exaggerated, since it was unclear whether GDC conducted market survey to establish the market price for the rig moves and whether the same was communicated to the evaluation committee,” DPP says.
The DPP claims to have found out that no statement was recorded to confirm if the GDC conducted a market survey to establish the market price for the rig moves and whether the same was communicated to the evaluation committee.
But the EACC in an affidavit says following the directive of the Supreme Court, the only option available is for the prosecution to institute proceedings against all the accused persons as initially charged.
Hassan Muhamud who is a member of the team that conducted the probe, has opposed the application by the ODPP saying the intended withdrawal of the criminal charges against the accused has not been made in public interest.
“There is no new evidence that has come in possession of the applicant clearing any of the accused from the offences they are charged with to warrant withdrawal of the charges. It is in the interest of justice therefore that this matter proceeds to its logical conclusion on priority basis as directed by the Supreme Court,” EACC says.
When the matter came up for hearing on Thursday, the EACC told the court they have interest in the case and were opposed to remarks by Senior Principal Prosecution Counsel Duncan Ondimu that their affidavit opposing the withdrawals be expunged. It maintained that it was properly on record.
Magistrate Nzyuki further directed the matter proceeds on March 4 for hearing as the defence counsels were granted time to respond to the application filed by the agencies in court.