The decision by the Director of Public Prosecution (DPP) Renson Ingonga to withdraw graft charges against former officials of Geothermal Development Company (GDC) was not made in public interest, a Nairobi court has ruled.
While dismissing the application to withdraw the charges against Mr Nicholas Karume Weke, Peter Ayodo Omenda and former company secretary Praxidis Saisi, anti-corruption chief magistrate Thomas Nzyoki said public interest and the interest of the administration of justice in the case, lie in hearing the matter on merit as ordered by the Supreme Court in a ruling last year.
The DPP had argued that a review of evidence revealed that there was insufficient evidence to support the charges that the rig moves at the Menengai site were exaggerated as claimed.
But Mr Nzyoki wondered what had changed as evidence showed the DPP had pursued the matter to the Supreme Court and won to sustain the charges.
“It is my considered opinion that the DPP’s application to withdraw the charges against the accused persons under Section 87(a) of the Criminal Procedure Code is not founded on any sound reasoning and is intended to defeat the Supreme Court judgment,” the court said.
Mz Nzyoki directed the case to be heard on June 25.
The case
The officials were charged in 2015 alongside former managing director Silas Masinde Simiyu and four other members of the company’s tender committee.
They were accused of illegally awarding a Sh42.7 million tender to Bonfide Clearing and Forwarding Ltd, at an inflated cost that was more than a 100 percent increase from the previous year.
The rig moves had been purchased at Sh19.5 million per rig, a year earlier.
The DPP argued that upon review of the evidence, there was insufficient evidence to confirm that the rig moves price was exaggerated since it was not clear whether GDC conducted a market survey to establish the value of the rig moves and whether the same was communicated to the evaluation committee.
According to the DPP, the process was duly followed only that the evaluation committee failed to compare market prices before recommending the award of the tender to Bonafide Clearing and Forwarding Ltd.
The EACC opposed the withdrawal and submitted that it was in the interest of justice that the matter proceed to its logical conclusion as directed by the Supreme Court.
“The grounds raised by the DPP for withdrawal of the charges specifically the aspect of market survey had been canvassed in the Court of Appeal and Supreme Court and the courts held that they are triable issues,” said Mr Hassan Muhamud an investigator in an affidavit filed in court.
The chief magistrate noted that at the Supreme Court, the DPP had argued that there was sufficient evidence to support the charges only for him to make an about-turn nine years later.
“The rare contest by the DPP and the EACC played out before this court runs against the judgment of the Supreme Court. The DPP sudden change of position is an unjustified deviation from his previous submissions on record before the superior courts which supported the charges,” he said.
The magistrate noted that the DPP’s powers to discontinue criminal charges are not absolute but are subject to courts' permission.
This is the second case the DPP is clashing with the EACC over plans to withdraw graft charges against high-profile individuals.
In a different case, EACC opposed plans to drop abuse of office charges against former Kenya Pipeline Company (KPC) managing director Charles Tanui, former KPC chief engineer Josephat Kipkoech Sirma as well as Mr Elias Maina Karumi, a chief technical manager.
The case against Mr Tanui and his co-accused has since been suspended, pending an appeal filed by the DPP’s office at the High Court.
