Rigathi Gachagua: Making of a dead case

Deputy President Rigathi Gachagua. [Denish Ochieng, Standard]

An affidavit by a senior Directorate of Criminal Investigations (DCI) officer could have driven the last nail into the coffin of a pending Sh7.3 billion corruption case against Deputy President Rigathi Gachagua and nine others.

In the latest of the string of withdrawal requests emanating from DCI and endorsed by the Office of Directorate of Public Prosecutions (ODPP), the lead investigator in the matter Kuria Obadiah has requested the matter against Gachagua be withdrawn.

It also emerged yesterday that another DCI officer, Martin Otieno, has recanted the bulk of evidence adduced in support of a constitutional case that featured prominently in turf wars between Director of Public Prosecutions Noordin Haji and former DCI boss George Kinoti.

On Friday last week, another affidavit sworn by DCI Head of Investigations John Gachomo emerged, denouncing his past averments on another high-profile murder case involving High Court judge Justice Sankale ole Kantai. He claimed he was handed a blank page to sign which later transformed into an explosive affidavit. In the Gachagua matter, Obadiah says they were rushed to investigate the case. “The investigation team I headed was given strict and fixed timelines to come up with findings promptly which made it difficult to conduct thorough investigations into the allegations,” Obadiah says in the affidavit sworn on October 15, 2022.

In the affidavit, Obadiah says his boss directed them to make recommendations that will enable the accused persons to face charges. He says that based on the immense pressure from his director, his team was forced to make the recommendations that put Gachagua on the dock.

Gachagua has always maintained the case against him was politically motivated. “There are crucial areas of investigations that were not adequately covered in the course of our investigations that would shed some light in determining the culpability or otherwise of the accused persons charged,” he says in the affidavit.

Criminal procedure code

Obadiah says it would be prejudicial to the prosecution to continue with the matter noting the outstanding areas that must be covered. He says he has since informed the court prosecutor of the same, and requested to have the matter withdrawn under Section 87 (a) of the Criminal Procedure Code. The section allows the prosecutor to withdraw a matter with the consent of the court, at any time before a judgment is pronounced. On Monday, the prosecutor in the matter, Vera Hamisi, sought three weeks to review the case file, the charges, and the evidence.

Gachagua had been accused of fraudulently receiving Sh7.3 billion knowing the monies to be proceeds of crime. He was also slapped with money laundering charges on account of monies received from Bungoma and Kwale counties, and conflict of interest charges relating to Mathira constituency.

“I pray that this honorable court allows the application to withdraw this case,” Obadiah says in the affidavit sworn before Mercy Chebet, Commissioner for Oaths. On August 23, 2022, Grace Murungi, the Deputy Director of Public Prosecution had written to Kinoti asking him to cover five grounds if the case was to survive in court. By Monday these grounds had not been covered.

In the first ground, she advised the investigators to separate the files according to each of the three counties the case revolves around - Bungoma, Kwale, and Nyeri. She also send a list of 12 documents she required to firm up the case, among them letters of awards, minutes of tender committees, procurement plans, witness statements, attendance registers, and payment vouchers.

In the second ground, the DPP demanded 12 documents relating to National Irrigation Authority tenders. These include tender documents, annual budgets, advertisements for tenders, professional opinions, actual contracts, bank account statements, payment vouchers, and witness statements. In the third ground, the ODPP requested 15 items to tighten the Mathira CDF matter. She wanted specifications of various items, an annual budget, and procurement plan, a list of pre-qualified firms, company registration documents, letter of awards, and tender bid documents among others, all of which were missing.

Bank procedures

The fourth ground related to Rafiki Deposit Taking Microfinance Bank where she sought six documents. She wanted the investigators to obtain the bank procedures, record statements from the bank with regard to transactions amounting to over Sh1 million, and obtain a certificate of evidence.

In the last ground, the ODPP wanted several documents relating to the various companies mentioned in the case adduced. These include missing tax returns, business registration details, bank opening documents, and bid documents.

The Martin Otieno affidavit relates to a petition which challenged inter-agency guidelines on cooperation and collaboration in the investigation and prosecution of terrorism and terrorism financing. In the original affidavit, Otieno accused DPP of usurping police powers, forging documents, sidelining DCI, and designing the guidelines to protect terrorists and religious extremists.

In his affidavit, Otieno says he was misguided at the time of the original affidavit, did not have the benefit of certain information at the time, and misrepresented the law.

The Standard
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