The High Court dismissed a constitutional petition challenging the Director of Public Prosecutions (DPP) and two prosecutors over their handling of the Arror and Kimwarer multi-purpose dam projects corruption case.
The petition, Constitutional Petition No. E538 of 2023, was filed by Transparency International, the Kenya Human Rights Commission, Katiba Institute and the Africa Centre for Open Governance (AfriCOG) against the DPP, Geoffrey Obiri and Oliver Mureithi.
The case arose from Milimani Chief Magistrate’s Anti-Corruption Case No. 20 of 2019, Republic v Henry Rotich & Others, in which Chief Magistrate Eunice Kagure Nyutu acquitted all nine accused persons under Section 210 of the Criminal Procedure Code.
Following the acquittal, the four organisations moved to the High Court, alleging that the conduct of the prosecution violated constitutional and public accountability obligations.
They also sought orders touching on the prosecutorial immunity of the two individual prosecutors.
The DPP and the other respondents, represented by a prosecution team led by Senior Deputy Director of Public Prosecutions Vincent Monda, Deputy Director of Public Prosecutions Zachary Omwega and Assistant Director of Public Prosecutions Edna Ntabo, opposed the petition.
They argued that the petitioners had failed to demonstrate any constitutional violation, bad faith, illegality or abuse of prosecutorial discretion.
They maintained that an acquittal, by itself, was not proof of prosecutorial misconduct or a violation of the Constitution.
The respondents further defended the DPP’s constitutional authority under Article 157 to independently assess and review evidence throughout the prosecution process.
They explained that applications for adjournments in the lower-court proceedings were intended to facilitate an independent review of the evidence and should not be construed as an attempt to improperly terminate the prosecution.
On the question of personal liability, the respondents relied on Section 15 of the Office of the Director of Public Prosecutions Act, which provides protection to officers for actions undertaken in good faith in the execution of their official duties.
They argued that the petitioners had not established grounds for lifting that protection.
In its determination, the High Court observed that the respondents had not exhibited nepotism or favouritism, noting that they had acted as agents of the DPP. The court also criticised aspects of the approach adopted by the lower court in reaching its decision.
The dismissal of the petition means the challenge against the DPP and the two prosecutors has failed, allowing the respondents to retain the legal protections associated with the discharge of their prosecutorial responsibilities.
The decision highlights the distinction between the outcome of a criminal trial and the conduct of prosecutors, underscoring that an acquittal does not, on its own, establish wrongdoing by the prosecution.
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