DPP Renson Ingonga has explained why he withdrew the Sh8.5 billion graft case against former Tourism CS Najib Balala and 16 others.
In a response letter to the Ethics and Anti-Corruption Commission, Ingonga said withdrawal of the case was in the interest of justice and the need to avoid abusing the court process.
The case had gaps, the Director of Public Prosecutions said, which the EACC failed to address, despite having recommended the same.
“The true position is that the charges against the former CS, his then PS and their co-accused persons were in fact withdrawn as a result of the EACC’s failure to submit the documents... and the forgoing crucial evidential gaps, with which the charges against the accused persons could not be proven beyond reasonable doubt,” Ingonga said.
Allowing the matter to proceed and be fixed for hearing in the circumstances would not only be contrary to the fair trial rights of the accused, but would also be contrary to the public interest.
While the EACC claimed they were not consulted before moving to withdraw the case, Article 157 (10) of the Constitution decrees that the DPP shall, in the exercise of his powers or functions, not be under the direction or control of any person or authority.
Consulting the EACC would be contrary to this proclamation.
“The DPP’s exercise of his mandate and power subject only to the Constitution and the law and his power to withdraw criminal proceedings only subject to the permission of the court, which permission was granted in this case.”
The decision to charge the case was made on the basis of the Threshold Test, with the investigators promising to avail additional evidence.
“However, despite the DPP’s directions and reminders to the investigator...that specific identified areas be covered to ensure a successful prosecution, the said areas were never covered thus necessitating a review of the decision...,” he said.
"...it was established that the available evidence was insufficient to sustain the charges.”
The EACC asked the Court to reject the application, terming it against public interest and an abuse of the court process.
In a replying affidavit, EACC said they submitted the investigation report to the DPP upon conclusion of the investigations, who upon independent review concurred with the recommendations to charge the suspects.
The decision by the DPP to take a U-turn in the trial of Balala and seek withdrawal had taken the EACC by surprise as the matter was to proceed for hearing.
On July 31, the Malindi court allowed an application by the Office of the Director of Public Prosecutions to withdraw the graft case.
Malindi Chief Magistrate James Mwaniki allowed the application and the accused persons to be discharged under section 87(a) of the Criminal Code.
“Any cash bail deposited in court be released to the depositors and any security documents deposited in court be released back to the sureties and the sureties be and are hereby relieved of their obligations," ordered the magistrate.
However, withdrawal of the charges as sought by the ODPP cannot be said to amount to an abuse of court process, he said.
