Four human rights organisations have moved to the High Court to sue the DPP over the acquittal of former Treasury CS Henry Rotich and eight others in the Sh63 billion Arror Kimwarer dams graft case.
Transparency International, the Kenyan Human Rights Commission, the Katiba Institute, and the African Centre for Governance (AFRICOG) through lawyer Ochiel Dudley want their application filed on December 29, 2023, certified urgent, and two prosecution counsels held liable.
“The petitioners seek accountability for the “reckless dereliction of duty by prosecution counsel in the Kahs 63 billion Arror and Kirmwater dams case,” lawyer Ochiel says in court documents.
He says the organsations have sued to lift the immunity of the prosecution counsel and to hold them personally liable if the accused persons sue for malicious prosecution.
They argue that although the public has already lost Sh63 billion, it could lose more if, despite this petition, the accused persons sue and are paid damages for malicious prosecution from the public purse.
The organisations accuse the counsel of failing to call witnesses, citing “firm instructions not to proceed with the matter.”
They noted that even though the court acquitted the nine accused persons, they called for the accountability of the prosecution counsel for the prosecutorial misconduct.
They want an order pending hearing of the application, a conservatory order issued stopping any public official from paying from any public funds, and any damages for malicious prosecution in the Kshs 63 billion Arror and Kimwarer dams case.
However,while addressing the media at Milimani Law Court on Tuesday, lawyer Danstan Omari said the case before the court is speculative since those acquitted have not sued for compensation.
“It is not good that the organisations sue individuals in the office of the DPP. Suing against individuals is mischievous and threatens officers in the ODPP from carrying out their personal duties,” Omari said.
He said the application is misplaced and is an attempt at futility based on the fact that you cannot challenge the Constitution in any court of law.
Omari said no one can sue the DPP in any court on the issue of job description.
Article 232 provides that no public servant can be sued or prosecuted while discharging their mandate, he added.
He said the organisations cannot also direct the DPP from carrying out his duties.
“Rotich was charged while former DPP Noordin Haji was in office. There was no DPP in the officer to give directions in the case, as the prosecution had asked to be given time for a new DPP to give directions on whether it should be withdrawn or proceed,” Omari said.
However, he added that the court was adamant that the matter should proceed.
Omari said he will be seeking to be enjoined in the case as an officer of the court.
In December last year, Anti-Corruption Court Magistrate Eunice Nyutu acquitted the accused persons, saying the prosecution failed to lead the case and there was no evidence placed before the court to show the accused persons had the sole aim of defrauding the government of the monies.
The court also blamed the prosecution for only presenting eight witnesses out of the 49 that it had initially intended to call.
“All the accused persons in this case are hereby acquitted under Section 210 due to lack of evidence as a result of the reckless dereliction of duty by the prosecution,” the magistrate said.
Rotich was charged alongside chief economist Kennedy Nyakundi, Jackson Kinyanjui, David Kimosop, William Maina, Paul Serem, Francis Kipkech, Titus Muriithi, and Geoffrey Mwangi Wahungu.