YEAR ENDER: Major corruption-related cases in court this year

The anti-corruption court in 2023 dealt with some cases, some of which are still ongoing and have been for several years.

Others were lodged in court in the course of the year.

Here are some of the high-profile corruption-related cases in 2023:

Sh63bn Arror Dam case (Acquittal).

Former Treasury CS Henry Rotich and eight others were on December 13, cleared in the Sh63 billion Arror and Kimwarer graft case.

Delivering her decision, 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.

The former CS had been charged with conspiracy to defraud the government $501,829,769.43 (Sh 63 billion) by unlawfully initiating and entering into construction, financing, and insurance agreements for the development of Arror and Kimwarer multipurpose dam projects.

He was first arraigned on July 23, 2019.

He faced the case alongside former Kerio Valley Development Authority managing director David Kimosop, former chief economist Kennedy Nyakundi, former Nema managing director Geoffrey Wahungu and KVDA official Jackson Kinyanjui.

Others are William Kipkemboi, Paul Kipkoech, Francis Chepkonga and Titus Muriithi.

The prosecution in the case called 49 witnesses and closed its case on October 31, 2023.

Out of the 49 witnesses, the prosecution led evidence from eight witnesses mostly from KVDA.

The other 41 witnesses would come to court and leave without being led in their evidence.

This is as the prosecution would say they had no questions for them.

This was the same scenario in the case of the Investigating officer who is the most crucial witness in any given case.

At some point during the proceedings, Rotich's counsel Kioko Kilukumi raised the issue before Nyutu saying the DPP could withdraw the prosecution or close its case.

"The DPP should never be allowed to engage in legal misadventure of this nature in the future," he said.

"The prosecution intentionally and deliberately abandoned its case. It was ill-advised from the onset. It was carried on the wings of extraneous political considerations. It was not mounted on the strength of evidence of criminal culpability. It was bound to fail," the lawyer said.

Rotich and his co-accused allegedly committed the offence between December 17, 2014, and January 31, 2019.

When the case began, the Director of Public Prosecutions had put 24 individuals on trial but later dropped charges against 15 including CBK Governor Kamau Thugge.

In November 2021, the court dropped the charges after finding that the prosecution had failed to demonstrate charges associated with Rotich to specific breaches under procurement and public finance management laws.

A year ago, the suspects were charged afresh after the Anti-Corruption Court allowed the DPP to consolidate two files related to the two dams.

Waititu's Sh588M graft case

On September 21, 2023, the Anti-Corruption court found that former Kiambu governor Ferdinand Waititu and his wife Susan Wangari had a case to answer in the Sh588 million road tender graft case. 

Chief Magistrate Thomas Nzyoki ruled that the Prosecution has established a prima facie case against Waititu, Wangari and 11 other accused persons.

He noted that the evidence adduced by the prosecution through 32 witnesses and 741 exhibits was overwhelming to enable them to be placed on their defence.

In the case, the defendants were accused of fraudulently benefiting from tenders amounting to Sh588,198,328.

Ethics and Anti-Corruption Commission (EACC) investigators allege that the substantial tender was awarded to a company linked to the governor's proxies.

Previously, Waititu had attempted to halt the case by filing a suit to have the charges against him, his wife, and the other co-accused quashed.

He argued that the charge sheet had not specified the charges they faced.

The former county chief also argued the graft charges levelled against him were politically instigated after he fell out with the ruling class.

Waititu had claimed that he was sacrificed in a wider political war linked to the 2022 succession politics.

"Unfortunately, this case is one that was informed by the prevailing political temperatures within the country. I fell out of favour with the ruling political class and as a direct consequence I was cast out to wither and die," he told the court in August.

Waititu, Wangari, Testimony Enterprises, its directors and others were charged with the irregular award of road tender in 2019.

The tender was issued on February 12, 2018, and awarded to Testimony Enterprise after quoting Sh588 million.

It was meant for upgrading various gravel roads in Thika, Limuru, Gatundu North, Juja, and Ruiru sub-counties during the financial year 2017-2018.

After the award, the company allegedly gave Waititu a kickback of Sh25.6 million.

Sh356m graft case against Mike Sonko

In the case, Sonko and 16 others are facing economic crimes, abuse of office, unlawful acquisition of property and irregular payments that saw the county lose Sh356 million.

Sonko was first arraigned in December 2019 when he spent a weekend in jail after a dramatic arrest in Voi.

The arrest saw Sonko scuffle with police before being bundled in a helicopter and flown to Nairobi.

Since his first appearance in court over the allegations, four years have gone by and this year, the court has put the prosecutors on the spot.

This is after the Director of Public Prosecutions (DPP) failed to appear in court on November 9, 2023, for the case.

The matter had come up for hearing before Trial Magistrate Eunice Nyutu when the prosecuting counsel failed to show up without explaining. 

Nyutu blasted the prosecutors saying they are not only putting the court in a very embarrassing position but also the accused who has to sit in court with nothing happening to their case.

Following the no-show, defence lawyers Dr John Khaminwa and Assa Nyakundi applied to have the Sh356m graft case terminated under Section 24 of the Criminal Procedure Code (CPC) for the failure of the complainant to appear in court to tender evidence.

The court however dismissed the application and noted that the prosecutors' behaviour showed that they were abandoning the case.

Nyutu went on to declare the conduct of the prosecuting counsel and the DPP as contemptuous.

She said public prosecutors are required to conduct cases in a manner that promotes public interest and public good.

"Sabotaging and abandoning of cases by prosecutors must not be condoned and they should be held accountable," the magistrate added.

She directed that her ruling be placed before the National Council of Administration of Justice (NCAJ) for a dialogue over the prosecution of this case.

The case is still ongoing.

Ex-NHIF CEO Richard Kerich (Acquittal)

On November 3, 2023, Kerich and four others were acquitted in a Sh116.9 million graft case due to lack of evidence.

Delivering the verdict, Milimani Anti-Corruption Magistrate Eunice Nyutu said the prosecution did not prove the charges levelled against the former officials.

"I find that the prosecution has failed to prove its case beyond reasonable doubt against the accused persons on all the counts that they have been charged with and I acquit them forthwith," Nyutu ruled.

Kerich had been charged alongside NHIF officials David Chingi, Marwa Chacha and Meridian Medical Centre Directors Ndiba Wairiko and Peter Wambugu.

They had been charged in connection with the loss of millions meant for civil servants and disciplined forces' medical schemes.

It was alleged that the NHIF officials entered into a contract with Meridian Centre to provide medical care.

Kerich and Chacha were separately accused of failing to comply with procurement law that calls for open tendering and that of abuse of office.

It was alleged that they conferred a benefit of Sh43 million to Meridian, sometime between December 21, 2011 and February 8, 2012, which was not proven.

On the other hand, Wambugu and Ndiba were accused of obtaining money by pretence while they knew that Meridian had no capacity to provide medical services to the civil servants.

The prosecution called 39 witnesses, but the magistrate said none of them linked the former CEO and his co-accused to the alleged conspiracy.

They were first freed by the court in 2017 on the grounds that the prosecution failed to prove their case.

Then, the court ruled that the prosecution did not provide the audit report to prove their case. 

The Director of Public Prosecutions however, went back to the court to seek fresh orders and the court ruled in 2021 that the suspects had a case to answer.

Wycliffe Oparanya 

Oparanya's woes began on August 23, 2023, when he was questioned by Ethics and Anti-Corruption Commission detectives alongside his spouses.

This was in relation to the alleged embezzlement of Sh1.3 billion during his tenure as the Kakamega governor during the Financial Years 2013-14 to 2021-22.

EACC also obtained search warrants and seized various items belonging to Oparanya linked to the alleged improper acquisition of property.

Following this, Oparanya moved to the Anti-Corruption Court arguing that EACC went beyond the scope of the court orders when they confiscated mobile phones from his children, spouses and workers.

He also said the Commission had seized and carried away documents, computers, mobile phones and Sh2 million in cash.

He argued that the search orders did not authorise the seizing and carrying away of any document without demonstrating the connection between those documents and any alleged crime.

"The orders did not authorise anyone to seize and carry any mobile phones and computers belonging to other persons who are not parties to the proceedings," he added.

Chief Magistrate Thomas Nzyuki directed both parties to have a joint meeting and agree on the documents that are relevant to the case so that they can be retained.

He also ordered EACC to release any devices or documents that were not relevant to the case.

EACC went on and released some of the documents and gadgets that were not being contested but declined to release Sh2 million of the money seized.

Through Advocate Philip Kagucia, the Commission told Nzyuki the money could not be released as it was yet to establish its source.

"The court is saying Sh2 million is a small amount to Oparanya but It's a significant amount for the people of Kenya. Give us time to probe," Kagucia said on September 8.

On September 12, Chief Magistrate Nzyuki ordered EACC and Oparanya to seek to settle the Sh2 million matter through other legal channels.

He stated that the court-issued search warrant did not spell the seizing of the sought amount.

"The seizure of the Sh2 million by the EACC cannot be explained. Equally, the sum of Sh2 million is not an exhibit before this court, so it cannot continue entertaining any further litigation over this particular sum," Nzyuki said.

"I, therefore, make the following orders that this matter is hereby marked as closed and parties in their own devices are at liberty to pursue the state of the sum of Sh2 million through other legal means outside this publication."

In October, the anti-graft commission revealed that it had concluded investigations against Oparanya and forwarded the file to the Director of Public Prosecution for action.

Come November, EACC obtained orders to freeze the former governor's assets worth Sh28.9 million.

Justice Esther Maina prohibited Oparanya, private companies associated with him, their agents, servants or any other persons from withdrawing, transferring, or in any other way dealing with the frozen amount for the next six months.

In the EACC battle is a Sh89 million house.