Rotich off the hook in dam scandal as 'reckless' prosecutor censured

Former Treasury CS Henry Rotich yesterday got his freedom after he was acquitted in the Sh63 billion Arror dam scandal case.

His case and that of his co-accused persons was dropped due to lack of evidence.

Dismissing the case, Trial Magistrate Eunice Nyutu said there is no evidence to warrant them being placed on their defence.

"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.

Nyutu in acquitting them, said there was no evidence placed before the court to show the accused persons had the sole aim of defrauding the government of the monies.

At the beginning of the Sh63 billion Arror and Kimwarer dams case, the office of the Director of Public Prosecutions vowed to present a water tight case against Rotich and eight others based on the strong evidence they claimed to have had secured.

But soon after calling eight out of the 49, their tune changed.

“They would call witnesses and not examine them. This would appear to be a well-choreographed led acquittal…,” said the trial magistrate

In lecturing the Office of the DPP, Nyutu questioned why the said office proceeded to commence the proceedings without existence of evidence which they had initially.

“A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution, otherwise the prosecution will be malicious,” she said.

The office of the DPP has in the recent past been on the receiving end following withdrawals of high profile cases and acquittals based on lack of sufficient evidence.

In December last year, former Kenya Pipeline managing director Joe Sang was acquitted in the Sh1.9 billion Kisumu Oil Jetty project graft case under Section 210 of the criminal procedure code by Magistrate Victor Wakumile, for lack of sufficient evidence to support the case.

Other cases that were dropped on the request of the office of the DPP were that of former Kenya Power managing director Ben Chumo and 10 others, the Sh19 million graft case against Gender CS Aisha Jumwa and the tax evasion case against businesswoman Mary Wambui among others.

Magistrate Nyutu in her decision to acquit Rotich and team said the conduct at the office of the DPP has become a trend and needs to be checked.

“I find there is need to check the unfortunate and reckless habit of the ODDP commencing proceedings which they have no intention of pursuing to its logical conclusion. Such conduct is an upfront to the administration of justice. It is an insult to the dignity of the court and all stakeholder of the criminal justice system,” she said.  

All the accused persons in the dams case were set free under Section 201. The magistrate said it was due to lack of evidence as a result of the reckless dereliction of duty by the prosecution.

Rotich was on July 23, 2019, arraigned and faced graft-related charges.

One of them was a conspiracy to defraud the Government of Kenya US $501,829,769.43 (Sh63 billion) by unlawfully initiating and entering into construction, financing, and insurance agreements for the development of Arror and Kimwarer multipurpose dam projects. He faced this charge alongside Chief Economist Kennedy Nyakundi, Jackson Kinyanjui, David Kimosop, William Maina, Paul Serem, Francis Kipkech, Titus Muriithi and Geoffrey Mwangi Wahungu.

Their defense team led by Senior Counsel Kioko Kilukumi and Philip Nyachoti, told the court that the prosecution failed to adduce any evidence to show there was an agreement between the accused persons, to carry out the alleged unlawful act to defraud the Government of Kenya of billions of shillings.

The magistrate in agreeing with the defense team, said there was no evidence to show that there was a meeting of minds between the accused persons in resolving to defraud the government of Kenya Euros.

This meant that the charge of conspiracy could not stand.

She also said the law on public procurement in respect to the dam’s project was adhered to as there was a procurement plan in respect for the Arror multipurpose dam. The court said the letters of award for Arror dam dated December 4, 2015, and Kimwarer dam dated  February 1, 2016, show that the party awarded was CMC Di Ravena.

“No evidence has been adduced to prove that CMC Di Ravena and CMC Di Ravenna joint venture are in fact two distinct entities as had been alleged,” she said.

“There is also no evidence adduced to show that there was no approval for the public private partnership committee before inviting request for qualifications for the project,” the magistrate said.

On the charge of engaging in a project without prior planning, the magistrate said duty was vested on procurement entity KVDA. No evidence was placed before court to establish what role, if any, Rotich and Kennedy played in the procurement process.