Two prosecutors at the centre of the Sh63 billion Arror and Kimwarer dams scandal have retained their legal protection after the High Court found no evidence that they deliberately weakened the case against former Treasury Cabinet Secretary Henry Rotich and eight other accused persons.
Justice Chacha Mwita, now a Court of Appeal judge, dismissed a petition by four lobby organisations that wanted Geoffrey Obiri and Oliver Mureithi held personally responsible for their handling of the corruption proceedings.
The groups, Transparency International, Katiba Institute, the Kenya Human Rights Commission and the Africa Centre for Open Governance (Africog), had asked the court to withdraw the immunity enjoyed by the two officers under the law.
They argued that the prosecutors had failed to carry out their duties properly, leading to the collapse of the case and potentially exposing the government to expensive compensation claims.
The organisations wanted Obiri and Mureithi held personally accountable if Rotich and the other acquitted suspects pursued legal action against the State over malicious prosecution.
However, the judge found that the petitioners had not established that the two officers acted dishonestly, abused their positions or intentionally frustrated the proceedings.
In dismissing the case, Justice Mwita said the prosecutors had provided explanations for the challenges they encountered, particularly the loss of key witnesses and the lack of a substantive Director of Public Prosecutions (DPP) at the time.
"The court is satisfied that the 2nd and 3rd respondents were forced by circumstances to act as they did and there was nothing to demonstrate that they did not act objectively and impartially or that their action was influenced by nepotism, favouritism, corrupt practices or improper motives," the judge said.
The legal challenge arose after Rotich and eight co-accused persons were acquitted on December 14, 2023, following the prosecution's failure to bring 41 witnesses to testify in the case.
Trial magistrate Eunice Nyutu terminated the proceedings under Section 210 of the Criminal Procedure Code, freeing the accused while questioning the conduct of the prosecution.
The acquittal prompted the four organisations to seek accountability from the officers who had handled the case, arguing that the immunity provided under Section 15 of the Office of the Director of Public Prosecutions Act should not shield prosecutors whose actions were allegedly outside the requirements of good faith.
They maintained that the failure to present witnesses and advance the case amounted to neglect of duty, which could leave taxpayers bearing the financial consequences if the acquitted individuals successfully sued the government.
But Justice Mwita said the groups had not demonstrated that Obiri and Mureithi intentionally kept witnesses away, disregarded evidence or failed to perform their responsibilities.
The court also found that there was no proof that the witnesses had been pressured into withdrawing their statements or that their decisions to pull out of the case were not genuine.
In their response, the prosecutors explained that the difficulties surrounding the witnesses had been formally communicated to the prosecution office months before the case collapsed.
They told the court that on August 10, 2023, the Directorate of Criminal Investigations informed the DPP that four witnesses had withdrawn their earlier statements.
The prosecution also lost another important witness following the death of the former director of the Public Procurement Regulatory Authority.
Additional communication received on August 30 confirmed that the four witnesses had maintained their decision to withdraw their statements.
Following the developments, Obiri sought guidance from the DPP on the way forward. However, the acting DPP directed the prosecutors to wait for a substantive office-holder to be appointed to assess the case and determine the next course of action.
Justice Mwita said the evidence before him did not establish that the prosecutors had acted out of personal interests or received instructions from outside the prosecution office to compromise the case.
He further explained that Section 15 of the ODPP Act provides legal protection to prosecution officers against personal claims arising from actions undertaken honestly in the execution of their official responsibilities.
The judge, while referring to a Supreme Court decision, noted that immunity is necessary to allow prosecutors to make independent decisions without being threatened with personal legal action whenever a case does not succeed.
The court consequently rejected the lobby groups' attempt to make the two officers personally answerable for the collapse of the multibillion-shilling dams prosecution.