The acquittal of former Treasury CS Henry Rotich and eight others in Sh63billion Arror Kimwarer dams graft case has seen DPP being taken to court.
Transparency International, Kenyan Human rights commission, Katiba Institute and African centre for governance (AFRICOG) through lawyer Ochiel Dudley wants their application filed on December 29,2023 certified urgent and two prosecution counsels Geoffrey Obiri and Oliver Mureithi held liable.
“The Petitioners seek accountability for the “reckless dereliction of duty by prosecution counsel in the Kahs 63 billion Arror and Kirmwater dams case”, lawyer Ochiel says in court documents.
He says the organizations have sued to lift the immunity of the prosecution counsel and to hold them personally liable if the accused persons sue for malicious prosecution.
They argue that although the public has already lost Sh63 billion, it could lose more if, despite this petition, the accused persons sue and are paid damages for malicious prosecution from the public purse.
The organizations accuse the counsel of failing to call witnesses citing “firm instructions not to proceed with the matter”.
They noted that even though the court acquitted the nine accused persons but called for accountability of the prosecution counsel for the prosecutorial misconduct.
They want an order that pending hearing of the application, a conservatory order issued stopping any public official from paying from any public funds, any damages for malicious prosecution in the Kshs 63 billion Arror and Kimwarer dams case.
The court also be pleased to consider taking action on whether the petition raises a substantial question of law under Article 165(4).
However, lawyer Danstan Omari has raised his concern on why the organizations have targeted prosecution counsels who prosecuted over the case liable for the collapse.
While addressing media at Milimani law court on Tuesday, Omari said their case before court is speculativesince those nine acquitted have not sued for compensation.
“It is not good that the organizations sue individuals in the office of the dpp.
Suing against individuals is mischievous and threatening officers in the odpp from carrying their personal duties”, Omari said.
He said the application is misplaced and its an attempt I futility based that you cannot challenge the Constitution in any court of law.
He said no one can sue the DPP in any court on the issue of job description.
Article 232 provides that no public servant can be sued or prosecuted while discharging their mandate, he added.
He said the organizations cannot also direct the DPP from carrying his duties.
“Rotich was charged while former DPP Noordin Haji was in office. There was no DPP in the officer to give directions in the case as the prosecution had asked to be given time for a new dpp to give directions on whether it should be withdrawn or proceed”, Omari said.
However, he added that the court was adamant that the matter should proceed. They requested for more time for a new dpp to take office as other courts waited but that court alone proceeded with the case recording over 40 witnesses but there was no directions.
“It raises concerns of the competency of the court. We will move to JSC on the manner in how the court handled that case. The mishandling of the matter of the case has caused Kenyans to lose the Sh63million. Why only that court when all courts had to wait for the new dpp to take directions on the withdrawal of the cases”, he said.
Omari said he will be seeking to be enjoined in the case as officers of the court.
In December last year, Anti-Corruption court Magistrate Eunice Nyutu acquitted the accused persons saying the prosecution failed to lead the case and there was no evidence placed before the court to show the accused persons had the sole aim of defrauding the government of the monies.
The court also blamed the prosecution for only presenting 8 witnesses out of the 49 that it had initially intended to call.
“All the accused persons in this case are hereby acquitted under Section 210 due to lack of evidence as a result of the reckless dereliction of duty by the prosecution,” the magistrate said.
Rotich was charged alongside Chief Economist Kennedy Nyakundi, Jackson Kinyanjui, David Kimosop, William Maina, Paul Serem, Francis Kipkech, Titus Muriithi and Geoffrey Mwangi Wahungu.
