The Supreme Court has allowed the Director of Public Prosecutions (DPP) to appeal against a ruling that has stalled 127 graft related cases estimated to be worth Sh17 billion.
The cases were stopped after the Appeal Court ruled that they were filed when Ethics and Anti-Corruption Commission (EACC), which investigated them, was not properly constituted.
But the DPP, EACC and the Attorney-General moved to top court arguing that the decision of the lower court had the effect of collapsing graft cases that led to loss of Sh17 billion, dealing a blow to the renewed drive to end corruption.
The DPP said there was real danger that the 127 cases, which were in various stages in courts across the country, would be prematurely terminated.
Some were already withdrawn including an abuse of office charge against former Cabinet Secretary (CS) and current Kitui Governor Charity Ngilu.
Senior principal litigation counsel Fredrick Ashimosi said in an affidavit that whereas the Court of appeal said the EACC was at liberty to charge the suspects afresh, it is not possible to withdraw the cases the prosecution had closed, conviction entered and sentences pronounced without resulting in acquittal.
Former CS Michael Kamau’s case was withdrawn, but he was charged afresh after a vicious court battle that was linked to the EACC composition.
Six judges of the Supreme Court- Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola- said the DPP had made a compelling case for the court to exercise its discretion on the matter.
Judges Asike Makhandia, William Ouko and Kathurima M’inoti of the Court of Appeal terminated Mr Kamau’s case but gave the EACC the go ahead to prosecute him afresh.
The Supreme Court case was filed last year but the DPP sought an extension of time and a stay of execution of the appellate court’s decision arguing that it had taken them long to obtain certified copies of typed proceedings, to enable them file the appeal.
Mr Kamau opposed the application saying he had already been charged afresh before a magistrate and the appeal was therefore ‘useless’.