How big shots use courts to frustrate corruption cases and delay justice

Former Central Bank of Kenya Governor Njuguna Ndung’u

Multiple applications before higher courts are frustrating the speedy trial of corruption cases against big shots.

It has become routine for top officials to rush to the High Court and Court of Appeal to seek orders either barring their arrest or prosecution, with some taking over a year to determine.

Cases against governors Alfred Mutua (Machakos), Nathif Jama (Garissa), Mwangi wa Iria (Murang’a), Wycliffe Oparanya (Kakamega), Godana Doyo (Isiolo), former Central Bank of Kenya Governor Njuguna Ndung’u, former Principal Secretary Thuita Mwangi and former Cabinet Secretaries Charity Ngilu and Michael Kamau have faced such intrigues.

For instance, the case against Prof Ndung’u over alleged irregular award of a Sh1.2 billion security tender has been on hold, although he was to be charged on February 10, 2014.

Shortly before he was charged, Ndung’u challenged his prosecution in the High Court, a case that was concluded in November 17, 2014.

“The trial court is better placed to decide the efficiency of the case and the CBK Governor stands a better chance to defend himself appropriately. I am therefore not convinced that there is sufficient reason to stop the impending prosecution. It is highly unlikely that he will be accorded an unfair trial,” Justice George Odunga said while dismissing the application.

On December 2, 2014 Ndung’u appealed Justice Odunga’s ruling and obtained temporary orders. The appeal is yet to be concluded.

Of the 371 anti-corruption and economic crimes cases pending in courts across the country, 87 are high-profile.

Case stalled

Dr Mutua was to be charged in February, last year, over alleged procurement irregularities in the purchase of second-hand vehicles but the case at the magistrate’s court has stalled.

Mutua moved to the High Court seeking to restrain the Ethics and Anti-Corruption Commission (EACC) and the Director of Public Prosecutions (DPP) from arresting and charging him, but lost the case in December. He went to the Court of Appeal and the petition will be heard on April 14.

“It is clear to the court that the petitioner has not made a strong case to be granted the said orders and therefore his application is hereby dismissed,” High Court Judge Isaac Lenaola ruled on December 18, last year.

The judge was clear that Mutua should defend himself before the trial court. And in the case involving Ms Ngilu and Mr Kamau, the High Court last week rejected their bid to block their prosecution, after nearly a year in court.

The DPP had recommended that Kamau be charged on May 28, last year with abuse of office and failure to follow procurement rules.

But the case against Ngilu before the magistrate’s court over the Karen land saga will further be delayed until June when her appeal will be heard.

In Mr Thuita’s case, whereas investigations into the sale of Sh1.6 billion Tokyo Embassy were completed in 2009, his trial and fellow accused Anthony Mwaniki and Allan Waweru opened seven years later.

On being charged on February 28, 2013, Mr Mwangi and his co-accused moved to the High Court and obtained temporary orders halting their trial for at least nine months.

They argued that their rights to a fair trial were breached by the respondents due to the unreasonable delay in prosecuting them. It was not until November 1, 2013, that the High Court dismissed their application.

Last week, Mr Iria obtained orders stopping his arrest and prosecution by EACC until his application is heard and determined. Iria was to be charged with preventing EACC detectives from searching his home in January this year.

And although the DPP on July 2 last year approved Mr Jama’s prosecution on claims of impropriety in leasing ambulances from the Emergency Plus Medical Services Ltd, owned by Kenya Red Cross Society, the case is yet to start.

On July 15, his lawyer Ahmednasir Abdullahi obtained temporary orders from High Court Judge Weldon Korir blocking his prosecution.

Mr Ahmednasir told the court that Jama, being a governor, was not a member of the tender committee.

“The entire case is therefore based on an inter-clan feud and a group of pastoralists settling an inter-clan dispute through the instrument of the State,” he argued.

Similarly when Mr Oparanya was summoned to court, he accused DPP Keriako Tobiko of abusing his office by directing that he be arrested and charged for failing to honour summons by a Senate committee.

Lack of jurisdiction

On December 16, Oparanya moved to the High Court and applied to have his plea-taking deferred. Through lawyers Paul Muite and James Orengo, Oparanya objected to his arraignment before Chief Magistrate Daniel Ogembo on grounds that the court lacked the jurisdiction to hear the case.

The chief magistrate adjourned the case pending the outcome of the governor’s petition. Mr Doyo is also facing fraud charges before the anti-corruption court in Meru, alongside two MCAs and a county assembly assistant clerk.

In January, Doyo moved to the High Court seeking termination of the criminal case against him. Meru Principal Magistrate Bernard Ochieng’ rejected the application by lawyer George Kithi, Kiogora Mugambi and Ken Muriuki to delay hearing of the case until a constitutional court makes a ruling on an application by the defendants.

“They are seeking a declaration that the anti-corruption case is unconstitutional and we feel the court is entitled to make a declaration in its own wisdom,” said Mr Kithi.

The magistrate rejected the application, saying there were no High Court orders barring the case from proceeding and fixed the hearing for three consecutive days from March 23.

In a case over the controversial Sh179 million Konza City land sale, former PS Bitange Ndemo and Machakos Senator Johnson Muthama moved to the High Court to challenge their prosecution.

— Reporting by Faith Karanja, Fred Makana and Kamau Muthoni