Balala case
Former Tourism Cabinet Secretary Najib Balala is a free man after the Office of the Directorate of Public Prosecutions (ODPP) Wednesday withdrew graft charges against him and 16 others, including former Principal Secretary Leah Gwiyo.
Malindi Chief Magistrate James Mwaniki allowed an application by the ODPP to withdraw abuse of office charges against Balala and Gwiyo as well as procurement fraud in the construction of the multi-billion Ronald Ngala Utalii College in Vipingo, Kilifi County against 15 others.
Mwaniki released the accused persons under Section 87(a) of the Criminal Procedure Code (CPC), which allows a public prosecutor to withdraw the prosecution of any person at any time before judgment delivered. Balala and Gwiyo were charged with jointly using their offices to confer a benefit to four consulting firms by resolving to engage private consultants against a cabinet decision which led to an irregular payment of more than Sh3.3 billion to the firms.
The duo denied the charges and have been out on a Sh1 billion cash bail each. The other 15, who include directors of the consulting firms, faced different counts and were released on different bail terms. Mwaniki, who delivered the ruling in his chambers away from the glare of media cameras, ordered that any cash bail amounts and any security documents deposited in court by the accused persons be released back to the sureties, who he also relieved of their obligations.
The magistrate’s decision has however irked the Ethics and Anti-Corruption Commission (EACC), which has termed it as against public interest and a drawback to the fight against corruption in the country.
Earlier on Wednesday, there was a heated argument between the EACC and the ODPP in court, with the former vehemently opposing the application to withdraw the charges, contending that it had conducted thorough investigations and established a water-tight case against the accused persons before preferring the charges, which were approved by the ODPP.
In its sworn affidavit presented to court by Mohamed Boru, the EACC said the decision by the ODPP had taken the Commission by surprise as the Commission had not been made aware of the DPP’s intention to withdraw the charges. “It is the Commission’s considered view that by the time the DPP gave consent to charge the accused persons, the investigations had been completed and the evidence gathered could sustain the charges before this honourable court,” Boru said.
“Further investigations can still be conducted by the Commission without withdrawing the case,” said Boru adding, “In view of the above, the Commission is opposed to the application and seeks that the matter be heard to a logical conclusion as filed.” The ODPP had, in a letter dated July 31, 2024, directed the discontinuation of the proceedings as investigations had not been completed and full disclosure made, noting that the period it might take to finalize the investigations was uncertain.
In his ruling, the magistrate said it was not right for the prosecution to arraign individuals in court without establishing prima-facie evidence that would not only sustain a charge but also a high threshold or likelihood of a conviction.
“It is not right, and the court is emphatic that this habit appears to be gaining traction with the ODPP, that accused persons are arraigned in court as investigations continue,” Mwaniki said.
He however ruled that the application to have the case withdrawn did not amount to an abuse of the court process, and noted that any decision by the ODPP to institute subsequent proceedings against the accuse persons or any of them on account of the same facts may itself be easily interpreted or may amount to an abuse of the court process.
“Whereas the withdrawal of the charges as sought by the ODPP cannot be said to amount to an abuse of the court process, the reason why it has been allowed by the court and whereas that withdrawal amounts to a discharge, any decision by the ODPP to institute subsequent proceedings against the accused persons or any of them on account of the same facts may itself be easily interpreted or may amount to an abuse of the court process,” he stated.
