The Director of Public Prosecution Keriako Tobiko has withdrawn a graft case in which two senior Nyeri County government officials were charged with abuse of office and corruption leading to loss of Sh30 million.
Mr Tobiko, in an application, said the charges levelled against the former Agriculture Executive Shadrack Mubea and Agriculture Chief Officer David Nyaga would collapse since the anti-corruption agency had no commissioners when the prosecution was recommended.
He said the graft case is among 125 others affected by a Court of Appeal judgment in former Cabinet Secretary Michael Kamau’s case, where it was ruled that the anti-corruption agency was not properly constituted when trial was commended.
Nyeri chief magistrate Wendy Kagendo allowed the DPP’s request to have the charges withdrawn and the file returned to Ethics and Anti-Corruption Commission (EACC) for review pending further directions.
However, the suspects through lawyer Kimani Njuguna opposed the withdrawal and wanted the case to proceed to full hearing.
Mr Kamani told the court that the application is prejudiced against the accused persons and was bad in law as he expressed fear that the suspects were likely to be arrested later and charged afresh.
He added that the DPP’s blunder and failure to comply with the Anti-Corruption Act was fatal to the case.
“Their lives will be in limbo because they can be rearrested immediately, later or even after ten years and be charged once again. Instead of allowing withdrawal of the charges the court should acquit them,” said Mr Kimani.
In her ruling, the chief magistrate explained that in case of charging the accused persons again the prosecutor cannot rely on the old facts in the discharged case but on different facts.
“The application is in proper legal foundation. EACC is not directed by the DPP. The case involves public interest and the court must be cautious,” said Ms Kagendo.
The court also directed that the Sh1 million cash bail deposited by the suspects be issued back.
Lawyer Kimani asked the court to supply him with certified copies of the ruling, apparently to prepare for a fresh case if the suspects will be rearrested.
The officials were charged that on July 14, 2014 in Nyeri County, they jointly used their offices to award an inflated contract of Sh30 million to a firm named Jomo Kenyatta University of Agriculture and Technology Enterprises.
The award dated July 14, 2014 was for an investigative audit to review liabilities to coffee societies in Nyeri County.
Initially, EACC had told court it would produce 12 witnesses in the case
Among the prosecution witnesses was Devolution Cabinet Secretary Mwangi Kiunjuri’s chief advisor Wambui Kimathi who was Nyeri County Secretary in Nyeri County Government between 2013 and 2015 while others are JKUAT officials.