DPP, EACC clash over withdrawal of two graft cases

The Director of Public Prosecution Renson Ingonga and Ethics and Anti-Corruption Commission (EACC) Chief Executive Officer Ttwalib Mbarak on Thursday clashed over the withdrawal of two graft cases.

EACC has asked the anti-corruption court to proceed with the two cases that stemmed from investigations.

On the other hand, the DPP wants to drop the charges and close the file.

Ingonga wants to withdraw Sh30 million graft case against former Kenya Pipeline boss Charles Tarus.

At the same time, the DPP filed another application on Thursday to drop Sh1.5 billion case against former Geothermal Development Corporation (GDC) officials.

The officials are Nicholas Karume, Abraham Kipchirchir, Peter Ayodo, Godwin Mwangare, Caleb Indiatsi, Bruno Mugambi and Michael Maingi.

However, EACC opposed the application arguing that from its investigations, there is concrete evidence to have the cases proceed to full hearing.

The anti-graft agency argued that it commenced investigations following a report that GDC bought Rig Move services at Menengai site.

According to the commission, the cost of the items was at an exaggerated cost of Sh 42.7 million.

At the same time, EACC claimed that in the Financial Year 2010/2011 GDC entered into a contract with Bonfide Clearing and Forwarding Limited (BCFCL) for Rig Move Services, at a cost of Sh19.5 million per Rig move.

EACC told court that in the financial year 2012/2013, GDC procured the services from the same company at a cost of Sh42.7 million per Rig move.

“Investigation revealed that the award of tender for Rig Move services by GDC at a cost of Sh42.7 million per Rig move in the F/Y 2012/2013 was very high and more than 100 per cent increase from the previous year.”

“This price was not guided by the market rates and as such the Government never got value for its money. Investigations further established that there was an inappropriate influence on the evaluation of tender that led to the award of tender to BCFL,” stated EACC’s investigator Hassan Muhamud.

EACC said that it recommended to the DPP to have the six charged alongside Praxidis Saisi on October 28, 2015. The then DPP, concurred a month later.

The case stalled after Saisi moved to the High Court to challenge the charges. The High Court on April 16, 2016 agreed with her and quashed the charges.

Later, Ayodo, Mwangare and Indatsia followed suit by filing their separate cases against the DPP. They also got the orders.

However, the DPP appealed and won.

Justices Mohamed Warsame, Asike Makhandia and Agnes Murgor found that the High Court erred by quashing the charges.

The battle did not end there. Saisi, Ayodo, Mwangare and Indiatsi moved to the Supreme Court.

However, Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko threw out the case and directed that the trial at the magistrate’s court should continue.

This was on January 27 last year.

In the meantime, DPP dropped charges against Kipchirchir, Masinde, Maina and Mbevi after the Supreme Court found that EACC was not properly constituted.

EACC on Thursday argued that DPP has no new evidence to allow him to drop the charges. At the same time, the anti-graft agency claimed that the DPP was acting against public interest.

“It is in the interest of justice therefore that this matter proceeds to its logical conclusion on a priority basis as directed by the Supreme Court of Kenya,” argued EACC.

The defense lawyers said they need time to respond to the reply by EACC. The case will be mentioned on March 10, 2024 before anti-corruption magistrate Thomas Nzyuki.

In the meantime, at the High Court, the DPP urged Justice Esther Maina not to refer Tanui's Justice Nixon Sifuna.

Senior Assistant DPP Alexander Muteti said that instead, the file should be sent to the Chief Justice to impanel a bench of three judges to hear whether he has power to withdraw the charges.

Tanui was charged alongside Elias Maina and Josephat Kipkoech. His trial also stemmed from a recommendation by the EACC.

In its recommendation to the DPP, the anti-graft agency claimed that it had established that the money in question was paid using false documents and the items were never installed, tested or commissioned.

“The EACC established that a total sum of Sh30 million was paid to M/S Redline Limited using false documents whereas the items were never installed, tested or commissioned as per the contract agreement,” EACC said in a statement sent to media houses.

According to EACC, Redline Limited was expected to supply, install, test and commission three autotransformers from M/S Agecelec of France. However, the agency said the work was not done.

“Upon completion of the investigations and pursuant to Section 35 of Anti-Corruption and Economic Crimes Act, the file was submitted to the Director of Public Prosecution (DPP) and upon independent review has granted the consent to charge the three,” it continued.

The three were accused of abuse of office, making false documents and willful failure to comply with law relating to procurement.

On the other hand, wanted the DPP to drop the charges on account that the EACC had settled the case in 2018 and closed the file involving Redline.