Lobbyists Challenge Ex-CS Rotich’s Sh63B Arror Dam Acquittal in DPP Lawsuit
Four organizations advocating for human rights have taken legal action in the High Court against the Director of Public Prosecutions (DPP) due to the exoneration of former Treasury CS Henry Rotich and eight additional individuals in the corruption case involving the misappropriation of Sh63 billion meant for the Arror and Kimwarer dams.
Transparency International, the Kenyan Human Rights Commission, the Katiba Institute, and the African Centre for Governance (AFRICOG), represented by lawyer Ochiel Dudley, seek an urgent certification for their application filed on December 29, 2023. Additionally, they request that two prosecuting attorneys be held accountable.
“The petitioners seek accountability for the “reckless dereliction of duty by prosecution counsel in the Kahs 63 billion Arror and Kirmwater dams case,” lawyer Ochiel says in court documents.
He claims that the organizations have filed lawsuits aiming to remove the legal protection of the prosecuting lawyers and make them individually responsible if the accused individuals decide to take legal action for wrongful prosecution.
They contend that despite the initial loss of Sh63 billion to the public, there’s a risk of further losses if the accused individuals proceed to sue and receive compensation for wrongful prosecution from public funds, even after this petition.
The organizations accuse the council of failing to call witnesses, citing “firm instructions not to proceed with the matter.”
They observed that despite the court’s decision to declare the nine accused individuals not guilty, they urged for the prosecution counsel to be held accountable due to their improper conduct during the prosecution process.
They seek a temporary order until the application is heard, a restraining order preventing any government official from using public funds, and compensation for wrongful prosecution in the Kshs 63 billion Arror and Kimwarer dams case.
However, during his media address at Milimani Law Court on Tuesday, lawyer Danstan Omari remarked that the case being presented to the court is based on speculation as the individuals who were cleared of charges have not filed any lawsuits seeking compensation.
“It is not good that the organizations sue individuals in the office of the DPP. Suing against individuals is mischievous and threatens officers in the ODPP from carrying out their duties,” Omari said.
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He stated that the application is out of place and is a futile attempt because it’s impossible to contest the Constitution in any legal court.
Omari stated that no one can take legal action against the DPP in any court regarding the matter of job responsibilities.
Article 232 stipulates that while carrying out their official duties, no public servant can be subject to a lawsuit or prosecution, he further explained.
He mentioned that the organizations do not have the authority to instruct or interfere with the DPP in performing their responsibilities.
“Rotich was charged while former DPP Noordin Haji was in office. There was no DPP in the officer to give directions in the case, as the prosecution had asked to be given time for a new DPP to give directions on whether it should be withdrawn or proceed,” Omari said.
However, he added that the court was adamant that the matter should proceed.
Omari said he will be seeking to be enjoined in the case as an officer of the court.
In December of the previous year, Magistrate Eunice Nyutu from the Anti-Corruption Court cleared the defendants, stating that the prosecution didn’t effectively present the case and no evidence was presented to prove that the accused individuals had the primary intention of cheating the government out of money.
The court criticized the prosecution for presenting just eight witnesses instead of the planned 49 witnesses.
“All the accused persons in this case are hereby acquitted under Section 210 due to lack of evidence as a result of the reckless dereliction of duty by the prosecution,” the magistrate said.
Rotich was accused along with chief economist Kennedy Nyakundi, Jackson Kinyanjui, David Kimosop, William Maina, Paul Serem, Francis Kipkech, Titus Muriithi, and Geoffrey Mwangi Wahungu.
Lobbyists Challenge Ex-CS Rotich’s Sh63B Arror Dam Acquittal in DPP Lawsuit
