The High Court has dismissed a constitutional petition challenging the conduct of the Director of Public Prosecutions (DPP) and two prosecutors in the high-profile Arror and Kimwarer dams corruption case.
The petition, Constitutional Petition No. E538 of 2023, was filed by four civil society organisations: Transparency International, the Kenya Human Rights Commission, Katiba Institute and the Africa Centre for Open Governance (AfriCOG).
The organisations had sued the DPP alongside prosecutors Geoffrey Obiri and Oliver Mureithi, accusing them of mishandling the prosecution of the multi-billion-shilling dam projects scandal and allegedly violating constitutional and public accountability obligations.
The petition followed the acquittal of all nine accused persons in Milimani 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, prompting the four organisations to challenge the conduct of the prosecution team before the High Court.
The petitioners also sought orders relating to the prosecutorial immunity enjoyed by the two individual prosecutors, arguing that their conduct warranted judicial scrutiny.
However, the DPP and the other respondents opposed the petition, arguing that the organisations had failed to demonstrate any constitutional violation, bad faith, illegality or abuse of prosecutorial discretion.
The respondents, represented by a prosecution team led by Senior Deputy Director of Public Prosecutions Vincent Monda, maintained that an acquittal does not, in itself, amount to proof of prosecutorial misconduct or constitutional wrongdoing.
They further defended the DPP’s independence under Article 157 of the Constitution, arguing that the office has the authority to independently assess and review evidence throughout the prosecution process.
The prosecution team also explained that applications for adjournments during the lower-court proceedings were intended to facilitate an independent review of the evidence and should not be interpreted as attempts to improperly terminate the case.
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 from liability for actions undertaken in good faith while executing their official duties.
In its determination, the High Court found that the respondents had not demonstrated nepotism or favouritism, observing that the two prosecutors had acted as agents of the DPP.
The court also raised concerns over aspects of the approach adopted by the lower court in reaching its decision.
The dismissal means the petitioners have failed in their bid to challenge the conduct of the DPP and the two prosecutors, with the respondents retaining the legal protections provided under the law in the discharge of their prosecutorial duties.
