The Director of Public Prosecutions (DPP) Noordin Haji wants the court to allow his intention to withdraw the Sh7.3 billion graft charges against Deputy President Rigathi Gachagua.
Citing a lack of evidence and difficulties in getting the same, the DPP blamed the Directorate of Criminal Investigation (DCI) for failure to conclude investigations and believes that based on the evidence available prosecutors cannot secure a conviction.
"The DPP independently reviewed the matter and concluded that the evidence does not meet the evidential threshold required to mount a successful prosecution of this case," said the DPP through State Counsels led by Vera Hamisi.
Explaining how the office of DPP had been frustrated by the DCI in its bid to be furnished with evidence for a period of over one year, the prosecutors requested court allow the application for withdrawal of the charges to enable the DCI to conclude the investigations and resubmit the file to DPP for directions.
"The DPP noted that the anticipated evidence will not be availed at this stage unless the Investigating Officer is given more time to complete investigations and resubmit the file to Mr Haji for further directions," the prosecutor told trial magistrate Victor Wakumile.
The court is scheduled to rule on the DPP's request tomorrow morning.
Lead investigator Obadiah Kuria, who was summoned by the court to testify on his affidavit, said he was pressured by former DCI boss George Kinoti to recommend the criminal charges involving corruption and economic crimes against Mr Gachagua and nine others.
Asked by the court why he recommended the charges and whether he acted at gunpoint, the superintendent of police said at the time of recommending the charges and arrest of Mr Gachagua the investigations had not been concluded and he was under immense pressure.
The magistrate also questioned the independence of the DCI.
“Based on immense pressure from my director Mr Kinoti, my team made the recommendations. The accused persons were charged and investigations could not continue as contemplated for various reasons,” stated the investigator.
The top officer said there are some crucial areas of investigations that were not adequately covered in the course of the investigations that would shed light in determining the culpability of the accused persons.
“It would be prejudicial to the prosecution’s case to proceed with the matter at this stage noting the outstanding areas of investigations that need to be covered. We have since informed the court prosecutor of the same and requested that the matter be withdrawn to enable the DCI to conclude its investigations. For this reason, I pray that this court allows the application to withdraw this case under section 87(a) of the criminal procedure code,” stated Mr Obadiah.
The prosecutor stated that despite numerous letters to the DCI asking for the original file and the exhibits, the investigators failed to provide the same.
The trial started in July 2021 and the hearing failed to take off over the unavailability of the evidence to support the alleged offences that Mr Gachagua and his co-accused allegedly committed in their business dealings with State agencies.
The defence lawyers led by Kioko Kilukumi and Kirathe Wandungi, did not oppose the DPP's application.
"We are not opposing the application by the DPP to withdraw the case under Section 87(a)of the Criminal Procedure Code. This application has been made before any prosecution witness has given evidence. According to the state if they were to proceed with the case it would end in an acquittal," said Mr Kilikumi.
He continued: The Prosecution is saving precious time for the parties including the court and accused persons.
"We are fully conscious of Article 157(8) of the Constitution as the withdrawal cannot be done without the permission of the court. Given the contents of the affidavit of Obadiah sworn there are good reasons offered for the court to grant permission to withdraw," said Mr Kilukumi.
The lawyer said the six charges against Mr Gachagua were politically instigated by the previous administration in an attempt to taint him.
"The six charges were politically instigated for two purposes, the first being for his political association with the United Democratic Alliance (UDA) party which was considered unfashionable for him to do. The second was to make his candidature unpalatable to the Kenyan voters. The voters however observed and indeed voted the outfit. As these charges were brought to undermine his right to vie (for deputy president). These charges were not brought for the proper purpose of administration of criminal justice," stated Mr Kilukumi.
He also said that Mr Gachagua was humiliated by the police during his arrest at his home in Mathira Nyeri at 3am.
"Mr Gachagua was arrested on a Friday at 3am (on July 23) in his Mathira home. After arrest, he was subjected to intense humiliation driven at neck break speed from Nyeri to DCI headquarters along Kiambu road. He was presented to court alone on July 26 (three days later)," said the lawyer. He argued that the other accused persons were collateral damages in the trial.
For his part, Mr Wandungi expressed fear that based on provisions of Section 87(a) of the Criminal Procedure Code the accused persons may be rearrested and charged again.
The second was to make his candidature unpalatable to the Kenyan voters The voters however observed and indeed voted for the outfit. As these charges were brought to undermine his right to vie. These charges were not brought for the proper purpose. Of administrating criminal justice.
Mr Gachagua had been charged alongside nine others including Nyeri senator William Wahome Mwangi, Anne Nduta Ruo, Julianne Jahenda Makaa, Samuel Murimi, Grace Wambui Kariuki, Lawrence Kimaru, Irene Wambui Ndigiriri, David Reuben and a company M/s Rapid Medical Supplies.
The charge sheet states that on diverse dates between 2013 and 2020 in Nairobi, Mr Gachagua allegedly fraudulently received Sh7,330,011,265 through three bank accounts at Rafiki Micro-Finance bank while knowing that the monies were proceeds of crime.
It is also alleged that on December 29, 2014 in Nairobi county, jointly with others not before the court, he fraudulently acquired Sh6 million in public funds for the supply of Dialysis machines to Nyeri Provincial General Hospital.
The DP was charged with money laundering for allegedly receiving a total of Sh104,821,205 from Bungoma County Government between January 2018 and June 2019, with the intent to unlawfully dispose of monies.
He is also alleged to have received Sh7,583,505 from the Kwale County Government with intent to unlawfully dispose of the money.
Mr Gachagua is also charged with conflict of interest on grounds that between October 2018 and January 2019 being the Member of Parliament for Mathira Constituency he privately benefited from a contract awarded for the construction of Njathaini Primary School which was funded by the Mathira Constituency Development Fund.
The contract, according to the charge sheet, was awarded to a company owned by one of Gachagua’s close associates.