Ex-Tourism CS Balala, 16 others off the hook in graft case

The Malindi court has allowed an application by the Office of the Director of Public Prosecutions to withdraw the graft case against Former Tourism CS Najib Balala and 16 others.

The DPP applied for the withdrawal before the hearing could start.

In his ruling delivered this Wednesday afternoon, Malindi Chief Magistrate James Mwaniki allowed the application by the ODPP to have the case withdrawn.

The Magistrate ordered 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.

He however reiterated that withdrawal of the charges as sought by the ODPP cannot be said to amount to an abuse of court process.

In a letter dated July 31, 2024, the ODPP directed the discontinuation of the proceedings as investigations had not been completed and full disclosure made.

The ODPP said that the period that it might take to finalize the investigations was uncertain, an argument the EACC opposed.

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 Director of Public Prosecutions (DPP), upon conclusion of the investigations, who upon independent review concurred with the recommendations of the Commission to charge the suspects.

EACC told the Court that the decision by the DPP to take a u-turn in the trial of Balala and seek withdrawal had taken them by surprise as the matter was to proceed for hearing.

"The Commission is taken by surprise by this development as it had not been made aware of the Intention of the Director of Public Prosecutions to withdraw the case," the EACC  said in an affidavit sworn by Mohamed Boru.

"It is the Commission's considered view that by the time the Director of Public Prosecutions gave consent to charge the accused persons, the investigations had been completed and the evidence gathered could sustain the charges before this Honorable Court."

In a spirited attempt to have the case proceed, EACC said investigations could still be conducted by the commission without withdrawing the case.

Chief Magistrate Mwaniki, however, turned down the EACC plea and ordered that Balala and his co-accused should never be charged again in the future on the same matter.