Uproar as court sets free owner of killer dam and eight others

Families of the 48 people who were killed when Patel Dam in Solai burst its banks in 2018 went home dejected on Monday after a court acquitted the coffee estate’s officials and other people in a matter that lawyers said was a clear case of a travesty of justice.

Mr Perry Mansukh Kansagara, the managing director of Patel Coffee Estates, Mr Vinoj Jaya Kumar, the general manager, and seven others had been charged with 48 counts of manslaughter and other criminal offences.

However, in a ruling that shocked prosecutors, lawyers for the victims, human rights groups and politicians, Naivasha Chief Magistrate Kennedy Bidali set all the nine free, saying prosecutors had failed to show a willingness to prosecute the matter.

Others who were charged were Water Rights Officer (WRA) Winnie Muthoni Mutisya, WRA Sub-Regional Manager Tomkin Odo Odhiambo, Assistant Technical Coordinator Manager (WRA) Jacinta Were, Nakuru County Director of Environment Williec Omondi Were and county National Environment Management Authority (Nema) officer Lynette Jepchichir Cheruiyot.

Immediately after the ruling, the nine walked out of the dock and consulted with their lawyers before leaving the court precincts.

HAJI'S APPEAL

Director of Public Prosecutions Noordin Haji said he would appeal the ruling, adding that he would also seek to establish the relationship between the magistrate and the accused people.

Lawyers for the victims also said they will next week seek a review of the ruling, which they described as a travesty of justice.

Some 48 people were killed in the May 9, 2018 tragedy and hundreds others were displaced by raging waters from the dam.

In the aftermath of the tragedy, several cases were filed in various courts, among them criminal proceedings against the dam owners and officials from Water Resource Management Authority and Nema.

Kabazi MCA Peter Mbae also filed a civil suit before the Environment and Land Court seeking orders for the restoration of the degraded environment on his farm in Solai.

The Justice and Environment Foundation and five other petitioners have also petitioned the court to order the dam owner and Nema to compensate the victims for the disruption of their lives and loss of property.

Relatives of the victims, lawyers and human rights activists went to court anticipating a ruling on several applications, including one by the Kenya Human Rights Commission (KHCR) seeking to represent the victims.

PENDING ISSUES

The estate’s bosses had also asked the court to allow them to negotiate with prosecutors for a plea bargain.

This, too, was yet to be finalised and an agreement presented to court.

Another issue pending before court was an application by lawyers for the accused persons, who had sought their acquittal on the grounds that the case had dragged on for too long.

However, when the magistrate read out his ruling, he addressed only the accused people’s application.

“No evidence was tendered by the prosecution. Constructively, the prosecution case closes and, in the absence of any evidence and the applying principles emanating from the authorities referred in the ruling, I hereby acquit the accused persons,” he said.

Mr Bidali said failure to prosecute the matter on December 2, 2019 when it was scheduled for a hearing had not been explained satisfactorily.

“Taking a holistic approach and considering all the circumstances surrounding the case, it is apparent that the prosecution is no longer keen in prosecuting this case,” he said.

PLEA BARGAIN

However, the DPP said lead prosecutor Catherine Mwaniki had been taken ill and a State counsel sent to represent the prosecution.

“I am alarmed by the ruling. We were still in negotiations with some of the parties for plea bargaining agreement and the court knew this. The court did not act in the public interest by acquitting the suspects on such a technicality,” said Mr Haji.

He complained that the court frustrated all his efforts to have the matter heard in Nairobi because there was an ill motive.

“We have been struggling to have this particular case heard in Nairobi because of this. We had suspected that some of the officers were compromised and that is why we were sending prosecutors from Nairobi,” added Mr Haji.

The decision by the court dealt a blow to the more than 400 victims, who were optimistic they would get justice.

The victims, who had been attending court for the past 18 months, were pushing to be involved in the negotiation process for a plea bargain, which would have seen the dam owner pay them some money.

According to one of their lawyers, Mr Benson Barongo, the application for a plea bargain would have had a serious effect on the outcome of the case.

“This would have meant that the suspects admitted culpability and were willing to compensate part of the loss,” said Mr Barongo.

THE POOR DISCRIMINATED

KHRC, which has been in the frontline in calling for justice for the victims, had, through its lawyers, sought to be part of the criminal proceedings.

“Today is a sad day for the Solai dam tragedy victims. The ruling was not expected as we thought the court would first deal with the application seeking to have the victims participate in the proceedings,” said Mr Robert Njenga, an official at Freedom of Information Network, which was working in partnership with KHRC in the dam case.

Human rights groups and the Senate criticised the acquittal of the suspects, terming it a travesty of justice.

Amnesty International, KHRC and Makueni Senator Mutula Kilonzo, who chaired a Senate investigation committee that found State officials and the owner culpable for the tragedy, said the 48 victims had been let down by the Judiciary following the verdict.

Amnesty International told the Nation the verdict points to a continuing worrying trend in the administration of justice by the Judiciary in which poor Kenyans with little influence are being failed by the justice system.

“This is a case where people’s lives were lost and property destroyed. That there is no culpability at all is a travesty of justice,” said Mr Demas Kiprono, campaign manager for safety and dignity at Amnesty International-Kenya.

KANSAGARA INDICTED

Mr Kiprono said the verdict in the case concurs with the findings of a recent report by the National Council on Administration of Justice that said the rich are able to circumvent justice.

“It is a disappointing situation for the victims,” KHRC’s George Kegoro said as he promised to issue a comprehensive statement today.

An earlier investigation by KHRC had found the owners of the farm culpable for the deaths of the 48 people.

Similarly, a Senate committee found Mr Kansagara, the dam owner, responsible for the tragedy, recommending that he be forced to compensate the affected families.

On Monday, Mr Kilonzo termed the verdict that resulted in the acquittal of the nine suspects an atrocity by the Judiciary and a travesty of justice.

He said his committee had established clear evidence of violations by the dam owner and government officials.

“When I was chairman of the select committee, we found absolute clear evidence of culpability on the part of government officials and the owner of the dam. It is also clear that there is evidence already with the prosecution of protected witnesses, who had alerted the management that the dam was going to break,” said the senator.

CASE BUNGLED

He said the ruling had robbed the local community of any hope of restitution.

“The minute Mansukh appears to have been innocent, he will never restore the environment of Solai. He is now going to go back to philanthropy and say I can only do one, two, three things yet that dam destroyed the livelihoods of people,” he said.

“The government officials who allowed this thing to happen are also going to walk scot-free.”

Mr Kilonzo asked the DPP to step aside “for bungling the case”.

“If you cannot prosecute such a clear case of forgery yet we the Senate, without investigative powers, found those people culpable, what are you talking about?” he asked.