The High Court has dismissed a constitutional petition challenging the Director of Public Prosecutions (DPP) and two prosecutors over their handling of the Arror and Kimwarer dams corruption case.
The petition, filed by Transparency International, the Kenya Human Rights Commission, Katiba Institute and the Africa Centre for Open Governance (AfriCOG), sought to hold the DPP, Geoffrey Obiri and Oliver Mureithi accountable for alleged constitutional violations in the prosecution of the multi-billion-shilling dam projects scandal.
The petitioners had challenged the prosecution's conduct following the acquittal of nine accused persons in Milimani Anti-Corruption Case No. 20 of 2019, Republic versus Henry Rotich and Others.
Chief Magistrate Eunice Kagure Nyutu acquitted the accused under Section 210 of the Criminal Procedure Code, prompting the four organisations to seek constitutional intervention over alleged breaches of prosecutorial and public accountability obligations.
However, the respondents, represented by a prosecution team led by Senior Deputy Director of Public Prosecutions Vincent Monda, Deputy Director Zachary Omwega and Assistant Director Edna Ntabo, maintained that the petition had failed to establish any constitutional violation, illegality, bad faith or abuse of prosecutorial discretion.
They argued that an acquittal does not automatically constitute evidence of prosecutorial misconduct, defending the DPP's constitutional mandate under Article 157 to independently evaluate evidence and determine how criminal proceedings should be conducted.
The respondents also defended applications for adjournments in the lower court, saying they were intended to facilitate an independent review of the evidence rather than improperly terminate the prosecution.
In dismissing the petition, the High Court observed that the respondents had not demonstrated nepotism or favouritism, noting that the two individual prosecutors had acted as agents of the DPP.
The court also criticised aspects of the lower court's approach in arriving at its decision to acquit the accused.
The petitioners had additionally sought to challenge the prosecutorial immunity enjoyed by the two officers.
Still, the respondents relied on Section 15 of the Office of the Director of Public Prosecutions Act, which protects officers against liability for actions undertaken in good faith in the execution of their official duties.
The dismissal effectively ends the constitutional challenge against the DPP and the two prosecutors, affirming the legal protections associated with the exercise of prosecutorial responsibilities.
The decision underscores the distinction between the outcome of criminal proceedings and the conduct of prosecutors, with the court maintaining that an acquittal alone does not establish prosecutorial wrongdoing.
