Transparency International, the Kenya Human Rights Commission (KHRC), Katiba Institute and Africa Center for Open Governance (Africog) lodged a petition on Tuesday against prosecutors Geoffrey Obiri and Oliver Mureithi. The organizations accused the two prosecutors of mishandling the Arror and Kimwarer dams case, seeking accountability for their reckless dereliction of duty.
In early December, an anti-corruption court acquitted former Treasury Cabinet Secretary Henry Rotich and eight co-defendants on fraud charges related to the Arror and Kimwarer dams, which were inflated to a price of 63 billion Kenyan shilling. The defendants were charged with unlawfully initiating and financing the dams, defrauding the government of USD 501,829,769. The court criticized the prosecution’s poor handling, noting that only eight witnesses out of 49 appeared in court. Obiri and Mureithi, the prosecutors, also failed to interrogate 41 witnesses and refused to call many others.
In response, the petitioners requested the court to lift the prosecution’s immunity and hold the prosecutors personally liable if the accused persons chose to sue for malicious prosecution. They argued that the prosecutors violated Article 157(10) of Kenya’s Constitution by failing to question witnesses. The Director of Public Prosecutions’ (DPP) decision to halt investigations due to “firm instructions” also violated Article 73(2). Additionally, the petitioners asserted that the prosecutors’ acts and inactions were in bad faith, potentially making them personally liable under Section 5 of the Office of the Director of Public Prosecutions Act.
According to the petition:
Burdening the public with the loss of a prosecution worth Kshs 63 billion of public funds and payment of damages for malicious prosecution because of prosecution counsel’s reckless dereliction of duty violates Article 10 and 201 of the Constitution. Article 10 demands good governance while under Article 201(1) public money must be used in a prudent and responsible way.
The prosecutors discharged several witnesses, including former Cabinet Secretary CS Peter Munya. According the magistrate, the prosecutors kept asking for adjournments awaiting for the new DPP to assume office. The magistrate declined to adjourn the case, further taking issue with the instructions being given to the two prosecutors handling the case.
Other co-defendants in the case included: Kennedy Nyakundi Nyachiro, Jackson Njau Kinyanjui, David Kipchumba Kimosop, William Kipkemboi Maina, Paul Kipkoech Serem, Francis Chepkonga Kipkech, Titus Muriithi and Geoffrey Mwangi Wahungu—all of whom were charged with abuse of office over the construction of the dams.
