The Director of Public Prosecutions Tuesday suffered a blow after the High Court declined to review an order allowing National Land Commission chairman Muhammad Swazuri to access his office.
The DPP had argued that allowing Prof Swazuri access to his office yet he is facing serious charges was discriminatory because other public officers, who are not constitutional office holders, are required to step aside.
A positive ruling for the prosecution could have bearing on other State officers facing criminal charges such as Migori governor Okoth Obado and Busia governor Sospeter Ojamong, who could have been forced to vacate office until their cases are heard and determined.
Through Senior Assistant DPP Alexander Muteti, the prosecution argued that they have already filed an appeal seeking an interpretation of Section 62 (5) and (6) of the Anti-Corruption and Economics Crimes Act (ACECA).
Unlike other public officers who are suspended on half pay upon being charged under the Act, constitutional office holders like Swazuri are exempted by the said section.
The Act says: “This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated”.
But pending determination of the case, Mr Muteti wanted Justice Hedwig Ong’udi to review her orders, which she made on November 1, allowing Prof Swazuri to access his office.
Justice Ong’udi said in the ruling that since the DPP was not satisfied with the ruling, it was better for him to pursue the matter as the appellate court.
Justice Ong’udi said she would have reviewed her decision had the DPP tabled evidence showing that Prof Swazuri had violated her orders.
It is the DPP’s view that when enacting the said section, Parliament applied it selectively and failed to consider its implications.
Prof Swazuri was charged in August alongside Kenya Railways Corporation boss Atanas Maina and 10 others over the standard gauge railway scam.
He was granted a cash bail of Sh3.5 million but restrained from accessing his office.
Prof Swazuri appealed against the decision and the court allowed him to access the office.