The Ethics and Anti-Corruption Commission has yet again clashed with the Director of Public Prosecutions (DPP) following the withdrawal of Sh292 million against Chief Executive Officer of the Tanathi Water Works Development Agency Fredrick Mwamati and his Executive Management Team.
The case was ongoing before the Kitui Anti-Corruption Court.
The case involved allegations of procurement probe in the award of tender for the construction of Kinanie Leather Industrial Park Water Supply Project Phase II & III at a cost of Sh292 million.
All the accused persons have subsequently been discharged in a ruling delivered on October 2, 2024, allowing the DPP to abandon the prosecution.
The DPP’s Application to end the case was vehemently opposed by EACC in an affidavit filed in court, terming it a complete disregard of public interest, abuse of the court process and made in bath faith.
DPP told the Court that subsequent to granting consent to EACC to arraign the suspects, the DPP received a request from the accused persons to review the evidence to check whether it was enough and that after undertaking the said review of the evidence, he concurred with the accused that indeed the evidence was not enough.
It was the DPP's position, that they conducted a review of the decision to charge based on the evidentiary test and established that there is no loss of public funds, that the contractor is still undertaking the works which are 91% complete and that no payments have been made under the contract.
He thus applied to withdraw the case.
The move is a U-turn on the EACC charges that the DPP had approved through a press release he issued on June 29, 2024 directing immediate arrest and arraignment of the Tanathi CEO and his senior officers.
In its affidavit however, EACC told the Court that the DPP had no basis for withdrawing the case since from the time he gave consent to prosecute after concurring with EACC that the evidence was sufficient, there was no new evidence received exonering the suspects from the findings of the investigations.
In its affidavit filed in court, EACC said that there is cogent evidence indicating that the procurement process was marred with irregularities and illegalities and that senior officials received huge kickbacks in the scam.
Chief Magistrate David Mburu in his ruling however agreed with DPP submission saying the reason for the withdrawal of the case is justified.
“After due consideration of all the arguments advanced in this matter, the court is satisfied that the DPP has presented proper justification for the decision to withdraw the case. The court is aware that it cannot make any conclusive finding on matters of fact at this stage,” Mburu said.
“In my considered
view, the DPP has properly exercised his powers with due regard to the public
interest, the interest of the administration of justice and the need to prevent and
avoid abuse of the legal process,” he said even as he set free the accused
persons.