The High Court has dismissed a constitutional petition challenging the Director of Public Prosecutions (DPP) and two prosecutors over their handling of the Sh63 billion Arror and Kimwarer dams corruption case.
The petition, filed in 2023 by Transparency International, the Kenya Human Rights Commission, Katiba Institute and the Africa Centre for Open Governance (AfriCOG), challenged the conduct of the DPP, Geoffrey Obiri and Oliver Mureithi in the prosecution of the controversial dam projects case.
The dispute followed the acquittal of all nine accused persons in Milimani Chief Magistrate’s Anti-Corruption Case No. 20 of 2019, Republic v Henry Rotich & Others.
In the case, Chief Magistrate Eunice Kagure Nyutu acquitted the accused persons under Section 210 of the Criminal Procedure Code.
Following the acquittal, the four organisations moved to the High Court, arguing that the conduct of the prosecution had violated constitutional requirements and public accountability obligations.
They also sought orders concerning the prosecutorial immunity enjoyed by the two individual prosecutors.
However, the DPP and the other respondents opposed the petition, arguing that the organisations had failed to demonstrate any constitutional violations, bad faith, illegality or abuse of prosecutorial discretion.
The 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, maintained that an acquittal does not automatically establish prosecutorial misconduct.
The respondents further defended the DPP’s constitutional mandate under Article 157, which grants the office independence in making decisions on whether to institute, undertake or discontinue criminal proceedings.
They explained that applications for adjournments during the lower court proceedings were intended to facilitate an independent review of evidence and should not be interpreted as attempts 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 protects officers against personal liability for actions undertaken in good faith while performing their official duties.
In its determination, the High Court observed that the respondents had not demonstrated nepotism or favouritism, noting that the prosecutors had acted as agents of the DPP.
The court also raised concerns over aspects of the approach adopted by the lower court in arriving at its decision.
The dismissal effectively ends the constitutional challenge against the DPP and the two prosecutors, allowing them to retain the legal protections associated with the discharge of their prosecutorial responsibilities.
The decision also underscores the distinction between an unsuccessful criminal prosecution and professional misconduct, with an acquittal alone being insufficient to establish wrongdoing on the part of prosecutors.