Miscarriage of Justice: How prosecutors have been bungling high-profile graft cases

For the last one year and a half, Kenyans have been served with shocking rulings and judgments.

In many of these cases, the prosecution has taken the blame for bungling the cases.

In some instances, the Office of the Director of Public Prosecution and that of the Ethics and Anti-Corruption Commission (EACC) have clashed in court over plans by the prosecutors to withdraw high profile graft cases. 

The trend has alarmed lobby groups which are now calling for the lifting of immunity granted to prosecutors so that they should be held liable for the management of cases they handle.

In a statement on Sunday, Kenya Human Rights Commission and Transparency International also called for granting the Ethics and Anti-Corruption Commission powers to prosecute.

"We aver that granting powers to EACC would streamline the prosecution process to ensure a more cohesive approach to the tackling of corruption cases," the lobby groups said. 

The civil society organisations further said the withdrawal of some of these cases have greatly undermined the fight against corruption and eroded public trust in the country's criminal justice system.

"The instances underscore deeper systemic issues in the prosecution of corruption cases to the extent that a section of the Judiciary handling the cases has criticised the conduct and management of cases by the ODPP," the lobby groups said.

That was the case last Thursday when the EACC took issue with the prosecution’s decision to withdraw a case against three former Geothermal Development Company officers.

The anti-graft agency said the decision by the prosecution was neither made in the interest of the public nor in the view of administering justice.

The three officers had been accused of fraudulently procuring the service of a rig mover at an inflated price. 

The EACC said its investigations had proved that the accused persons fraudulently procured the services for Sh42.7 million yet this same service cost just Sh19.5 million the previous year, leading the commission to contend that the cost was in excess of the prevailing market rates.

The ODPP filed to have the case dismissed on January 13, 2024 in an application that was meant to have been heard on February 22, 2024, but has been adjourned to next month to give the defence and the ODPP time to reply to EACC’s affidavit.

A week ago, the commission and the ODPP clashed yet again in court over another application by the ODPP to drop charges against former Kenya Pipeline Company Managing Director Charles Tanui and two others in a Sh30million graft case.

In other instances, prosecutors have been openly reprimanded by magistrates and judges for making an about-turn and seeking to drop cases that they filed a few years ago. 

Here are some of high profile graft cases that were bungled by the prosecution.

George Obiri and Oliver Mureithi

They handled the case pitting the State against former Treasury Cabinet Secretary, Henry Rotich, for the loss of Sh63billion in the failed Arror and Kimwarer Dams project.

In a ruling in December 2023 when she acquitted Mr Rotich and eight co-accused, trial magistrate Eunice Nyutu issued a damning indictment of the prosecutors for the willful dereliction of duty while handling the case.

Justice Nyutu noted that the prosecution staged a “well-choreographed” strategy to undermine its own case leaving her with no choice but to acquit the accused persons for lack of evidence. 

As the accused persons walked scot free, the ODPP’s hand in the collapse of the case was open for all to see.

“I find there is a need to check the unfortunate and reckless habit of the ODPP commencing proceedings which they have no intention of pursuing to its logical conclusion. Such conduct is an affront to the administration of justice. It is an insult to the dignity of the court and all stakeholders of the criminal justice system,” Ms Nyutu said.

She further directed that her ruling be pursued by other requisite State organs of the criminal justice system to investigate the conduct of the prosecution authority which she found was in breach of the powers granted by the constitution.

This came barely three months after the magistrate declined to grant an application by the ODPP to recuse herself from the case. The prosecution said the request was on the basis of alleged bias.

The no-nonsense magistrate said the attempt to have her removal was calculated at compelling the court to grant an adjournment by any means necessary. 

“This is abuse of the court process,” she said.

It is important to note that instead of willfully letting the case collapse, the prosecution had the option of formally seeking to withdraw the case.

Anet Wangia and Alex Akula

Ms Wangia handled cases involving former Nairobi Governor, Mike Sonko, who was charged with various corruption offences that led to the loss of Sh20 million and an additional Sh357million from Nairobi County on different occasions. 

During the suit, Ms Wangia would from time to time be represented by her colleague Mr Akula in court.

Yet again, Magistrate Nyutu found herself handling the cases that concluded with Mr Sonko’s acquittal.

Of all 19 counts of offences that Mr Sonko and 17 co-accused were charged with resulting in the loss of some Sh357million from the county’s coffers, the prosecution did not provide sufficient evidence to warrant the jailing or punishing the defendants. 

This was despite the ODPP providing prosecution counsel to conduct the trial.

An unamused Ms Nyutu added a few pages to her ruling to specifically list the misconduct of the prosecution in the case.

“It is tragic that a prosecution counsel would lose sight of these paramount principles and subvert the course of justice out of sheer recklessness. It is on record that prosecution declined to proceed with hearing on the basis that their application for withdrawal of charges against three accused person heard first,” she said.

She also questioned the prosecution for insisting on the hearing of the application yet the court had given directions on the mode of disposal of the said application. 

Regardless, the court allowed the prosecution to adjourn and collapse several hearing dates pending the determination of the said application.

“It is only after the hearing dates that it emerged that indeed the prosecution had no intention of proceeding with the trial. The court record will show that despite the witness (PW6) being present in court and due for cross-examination, the prosecuting counsel vehemently declined to proceed even after being granted an adjournment to allow him prepare.

“Their case was thus deemed to have been closed when on the following hearing date, the prosecution counsel stubbornly maintained that he did not have instructions to proceed with the case,” she said.

In the Sh20 million case that the Nairobi County government lost, still involving Mr Sonko and 18 co-accused persons, Justice Nixon Sifuna also faulted Ms Wangia for mishandling the case.

The judge also mentioned a certain Mr Akula who at some point held the brief for Ms Wangia while giving his ruling on a criminal revision application where the ODPP sued Chief Magistrate’s Corruption Court and the Attorney General.

Justice Sifuna pointed out that Ms Wangia was a no-show in the proceedings of case number 32 of 2019 before the Nairobi Chief Magistrate’s Court Anti-Corruption Court. 

The case involved Mr Sonko and 16 others who were charged with various corruption offences.

“On the day slated for further hearing, Ms Wangia, a prosecution counsel of the ODPP, was a no-show. Her absence was worrying to the court as it was unexplained and unusual,” Judge Sifuna said.

The judge said on the same day Ms Wangia was absent, her brief was held by Mr Akula, a prosecutor from the ODPP, who attempted to apply for an adjournment but the trial magistrate, Ms Nyutu, declined.

“Despite the denied application for adjournment, the said prosecution counsel, Mr Akula, refused to proceed with the hearing, notwithstanding that the witness was ready to testify and the defence was ready as well,” Justice Sifuna noted.

Mr Akula had told the court that he was simply holding the brief for Ms Wangia and thus sought the adjournment.

But Justice Sifuna faulted him saying that “whenever an advocate is holding brief for another advocate, on that other’s instruction, the session is properly constituted and the instructing advocate should not be allowed to base any scapegoat such absence”

“That will be chicanery that courts should not entertain,” he added.

The refusal to comply by the prosecution saw Ms Nyutu declare the prosecution’s case closed and set the court for ruling.

The decision threw the prosecution into panic and compelling the ODPP to file the revision application urging the High Court to stay further proceedings in the trial court, set aside the trial magistrate’s sad closure of the prosecution’s case.

The judge dismissed the reviewing application and faulted the prosecution for defying the court’s direction to close its case.

“This is yet another case in which I have to loudly call out the conduct of the prosecution’s counsel that attended the court on the two material days. Since we are all serving in this temple of justice, I urge co-operation between the bar and the bench.

“There is need for co-operation, harmony and mutual respect between the courts and those appearing before them, and especially advocates, state counsel and prosecution counsel, who also double up as officers of the court by virtue of their oath of office,” he stated.