The Ethics and Anti-Corruption Commission (EACC) and the Office of the Director of Public Prosecutions (ODPP) are headed for a clash after the anti-graft body opposed plans to withdraw a case against a former Nairobi County employee accused of forging academic certificates.
In an affidavit filed at the Milimani Anti-Corruption Court, the EACC said the proposed withdrawal of charges against Mr Gabriel Bukachi Chapia was not in the public interest, the interest of the administration of justice or to prevent or avoid abuse of process.
The EACC also noted that 14 witnesses had testified in the case and that the only witness left was the investigating officer before the prosecution closed its case.
“The subject matter of the suit is not a dispute between private individuals but genuine public wrongs where legal action was initiated for enforcement and advancement of constitutional justice and public interest,” Mr Daniel Tipape, an EACC investigator, said in an affidavit.
Principal Magistrate C.N. Ondieki adjourned the matter to November 7, to give the ODPP time to file its submissions on the application to withdraw the case.
The DPP and the EACC have recently clashed over the withdrawal of high-profile cases, including those against Co-operatives Cabinet Secretary Wycliffe Oparanya, former Cabinet Secretary Najib Balala and Tharaka Nithi Governor Muthomi Njuki.
In a recent ruling, a Kitui magistrate allowed the withdrawal of graft charges against nine people accused of stealing Sh292.7 million meant for a water project, saying the DPP's decision was justified.
Kitui Chief Magistrate David Mburu said the DPP was justified in withdrawing the charges in the public interest and to avoid abuse of legal process.
The magistrate said the DPP had proved that the alteration of pipes for the Kinanie Leather Industrial Park Water Supply Project, which formed the basis of some charges against the suspects, was done with public participation.
“In my considered view, the DPP has properly exercised his powers with due regard to the public interest, interest of the administration of justice and the need to prevent and avoid abuse of the legal process,” said the magistrate.
Mr Bukachi was charged on November 6, 2020 with 16 counts of forgery, giving false information and uttering false documents to secure employment.
The case was initially handled by Senior Principal Magistrate Victor Wakumile, and Mr Bukachi's attempts to have the case reopened after it was taken over by the new magistrate were dismissed in September.
He is alleged to have used the documents to secure employment as an ICT manager at Moi Teaching and Referral Hospital and Kenya Investments Authority and as a ward administrator at the Nairobi City County Government.
The ODPP said it decided to withdraw the case following a request by the accused person to review the decision to charge him.
The EACC, however, said only the court could determine whether Mr Bukachi had forged his academic certificates after analysing the evidence presented.
The anti-graft body said Mr Bukachi earned a total of Sh9.7 million from three public institutions using forged documents.
“The proposed withdrawal of the case by the DPP leads to a premature determination of the case, hence undermining the seriousness of the offence with a need for deterrence,” Mr Tipape said.
