In a classic case of the hunter getting hunted, four lobbies want the prosecutors who unsuccessfully sought to jail former Treasury Cabinet Secretary Henry Rotich for alleged corruption, held liable for allegedly bungling the case.
The Kenya Human Rights Commission (KHRC), Transparency International, Katiba Institute, and Africa Center for Open Governance (Africog) have sued prosecutors Geoffery Obiri and Oliver Mureithi, accusing them of mishandling Sh63 billion Arror and Kimwarer dams' case.
The four lobbies are seeking orders to lift immunity granted to the Office of the Director of Public Prosecutions to prosecute two state counsels for dereliction of duty in the trial of suspects implicated in the scandal.
The organisations accuse the prosecution of failing to lead witnesses, resulting in the acquittal of former Treasury CS Henry Rotich and others.
They are seeking a declaration that the Director of Public Prosecution (DPP) Renson Ingonga and prosecution counsel Geoffrey Obiri and Oliver Mureithi violated the Constitution by their “reckless dereliction of duty” and the failure to exercise their independence in the trial.
"An order be and is issued that the finding of constitutional violation in (a) above is a relevant factor to be recorded and considered should Geoffrey Obiri and Oliver Mureithi seek a state office," the petition reads.
They argue that the actions of the prosecution counsel were reckless dereliction of duty and not in good faith, and which does not entitle them from claiming immunity under section 5 of the ODPP Act, 2013.
Mr Rotich and eight others were acquitted by trial magistrate Eunice Nyutu for lack of evidence after the prosecution declined to lead 41 witnesses to give their testimony.
The petition says the state counsels were allegedly under “firm instructions not to proceed with the case” and in the process, violated Article 157(10).
"By the same token, the Respondents violated Article 73(2) requiring objectivity and impartiality in decision making, barring decisions influenced by nepotism, favouritism, other improper motives or corrupt practices," the petition reads.
They said the ODPP abused the powers of the office by deciding to halt the prosecution because of instructions from third parties in violation of Article 249 on the independence of independent officeholders.
"Further, the Respondents’ conduct violates Article 73(1) because the “reckless dereliction of duty” is inconsistent with the purposes and objects of the constitution, demonstrates disrespect for the people, brings dishonour to the nation and indignation to the office and weakens public confidence in the integrity of the office of the DPP," says the petition.
KHRC has in its report flagged the dropping of high profile cases as one of the major concerns last year.
The report titled 2023: A year of deepening regression in governance and human rights, says the dropping of high-profile criminal cases by the ODPP, was part of this scheme and that it has become untenable to oversee the Executive.
"The rogue regime is now misruling the country with limited accountability," the report says.
The four organisations said prosecution counsel is granted conditional immunity “if the matter or thing is done in good faith in the execution of the functions, powers or duties of the Office.”
But in the Arror and Kimwarer dams cases, they argue that the prosecution counsel acted in bad faith, unlawfully, and unreasonably.
