The court ordered a fresh hearing of the petition, ruling that Mr Oparanya was not personally served with court papers and was therefore denied a fair hearing. This ruling followed an application by Mr Oparanya seeking to set aside the judgment.
At the centre of the tussle is a 2023 recommendation by the Ethics and Anti-Corruption Commission (EACC) that Mr Oparanya be prosecuted over alleged corruption during his tenure as Kakamega governor, a move the DPP initially concurred with before reversing course in July 2024. The reversal was challenged in court by rights advocate Fredrick Mulaa, leading to the judgment that quashed the DPP's decision.
Allowing Mr Oparanya's application, the court held that the September 16, 2025, judgment nullifying the DPP decision could not stand because Mr Oparanya, listed as the first interested party, was not properly served despite court orders requiring personal service.
"The right to a fair trial cannot be limited," the court stated.
It emphasised that individuals must be notified of legal proceedings affecting them and allowed to respond before any adverse decision is made.
The court found that the petitioner, Fredrick Mulaa, had left court documents with the receptionist and legal department at the Ministry of Co-operatives and Micro, Small and Medium Enterprises Development — where Mr Oparanya serves as Cabinet Secretary — but failed to serve him personally.
The judge said that was not sufficient, especially because the ministry itself was not a party to the case.
A process server confirmed that he had not served Mr Oparanya in person and could not reach him, though he believed leaving documents at the ministry offices constituted proper service.
The court rejected this argument, stating that the burden of proving proper service rested with the petitioner and had not been met. It noted that where personal service is difficult, parties must seek court permission for alternative methods, such as electronic service or advertisement, under the Civil Procedure Rules.
"Leaving the documents with a receptionist and the ministry’s legal department was neither proper nor adequate service," the Anti-Corruption and Economic Crimes Court ruled.
The judge further stated that when a judgment is issued against a party who was not served, it must be set aside as a matter of right, without considering the merits of the defense or any delays in filing the application.
Consequently, the court set aside the 2025 judgment, reopened Constitutional Petition E004 of 2024 for a fresh hearing, and directed Mr Oparanya to file his replying affidavit within seven days.
The ruling provides Mr Oparanya with temporary relief from a decision that had renewed scrutiny of a stalled corruption case and raised concerns about the conduct of the DPP.
The original petition challenged the DPP for reversing its earlier decision to charge Mr Oparanya with corruption, conflict of interest, abuse of office, and money laundering.
In his response to the petition, the DPP described it as "misconceived in law and incompetent". He argued that the petitioner did not disclose the statutory and constitutional provisions that had been threatened with violation or had been infringed.
The DPP also argued that three of the documents used by the petitioner to support the case were obtained irregularly and illegally.
However, the court ruled the review process was irregular and unconstitutional.
The court found that the DPP failed to consult the EACC and violated its own guidelines by considering new evidence without referring it back for further investigation.
Court records indicated that the EACC had recommended charges against Mr Oparanya over alleged kickbacks from contractors during his tenure as Kakamega governor, with part of the suspected proceeds allegedly used to purchase property in Nairobi’s Karen area.
The DPP initially supported prosecution but later reversed its stance. The court deemed this reversal lacking in transparency and accountability, noting that the DPP’s guidelines require consultation with investigators and, where applicable, victims before dropping charges.
The July 8, 2024, decision was based on representations from Mr Oparanya’s lawyers rather than fresh EACC investigations, leading the court to nullify the review while upholding his parliamentary-vetted appointment as Cabinet Secretary.
Mr Oparanya then sought court intervention, citing improper service in the initial petition. By overturning the 2025 judgment, the court reset the case, reaffirming that even high-profile public interest litigation must adhere to fundamental rules of due process.
The case will now proceed to a fresh hearing, with Mr Oparanya formally participating.
The outcome will determine whether the earlier challenge to the prosecutors’ conduct—and broader questions about the handling of the corruption case—will stand or be overturned after a full hearing.
The judge acknowledged that reopening the case would consume more judicial time but said the right to fair hearing took precedence.
"This is a matter of right," the judge stated, underscoring that the justice system cannot uphold a decision made without proper notice to the affected party.
