The government has been ordered to pay former Independent Electoral and Boundaries Commission (IEBC) official, Adan Katello Adano, Sh3.1 million after the High Court found that prosecutors maliciously sustained corruption charges against him for nine years despite forensic evidence clearing him.
The ruling is likely to reignite scrutiny over failed corruption prosecutions and the financial burden placed on taxpayers through compensation arising from wrongful criminal trials.
The court ruled that the Office of the Director of Public Prosecutions ignored crucial evidence that exonerated Mr Adano in a criminal case linked him to the controversial Sh105 million solar lantern tender for the 2013 General Election.
PHOTO | PHOEBE OKALL | FILE Observers and journalists wait for results at the National Elections Centre at the Bomas of Kenya on March 6, 2013. The IEBC haS been ordered to release the serial numbers of hand-held devices used to transmit poll results.
It said the prosecution acted “recklessly” by continuing with his trial even after forensic examiners concluded that Mr Adano did not sign the disputed tender documents forming the basis of the conspiracy charges.
“The decision to sustain a trial even after exoneration by the forensic evidence reek of recklessness and total disregard to the rule of evidence. It breeds, infers and harbors malice which is key to the last ingredient of malicious prosecution,” the court ruled.
It overturned a September 2024 magistrate court’s ruling that had dismissed Mr Adano’s suit against the State for malicious prosecution.
Mr Adano had sued the Director of Public Prosecutions, the Solicitor-General and the Attorney-General after he was acquitted in the criminal trial that lasted from 2013 to 2022.
He had been charged alongside seven others over accusations of conspiring to alter tender documents to fraudulently award the solar lantern supply contract to Solarmak Technologies Ltd during preparations for the March 4, 2013 General Election.
Prosecutors alleged that the accused persons changed the contents of the original tender documents submitted by the company and reduced the quoted price from Sh127.4 million to Sh105 million to make the firm appear as the lowest bidder.
The accused denied the charges and the case proceeded to a full trial before they were acquitted on February 28, 2022.
In the appeal, Mr Adano argued that investigators and prosecutors continued pursuing the case despite evidence showing he was not responsible for the disputed signatures.
The court agreed, saying the prosecution ignored its constitutional duty to act objectively and in the interest of justice.
It noted that a forensic report commissioned during investigations had cleared Mr Adano, but prosecutors still retained him in the case for years.
“In its investigative report, the EACC acknowledged that the appellant was exonerated in the report but still did not recommend that he be removed from the case,” the judge said.
The court further noted that Mr Adano’s lawyers wrote to prosecutors seeking termination of the case long before the trial ended, but no action was taken.
“The appellant through his advocate wrote to the Prosecution during the pendency of the corruption case, in fact seven years before the matter was finally concluded but still no action was taken,” the court stated.
It said the only evidence linking Mr Adano to the alleged conspiracy was testimony from a colleague claiming he had signed the documents.
However, the court found that the evidence had been contradicted by forensic findings.
“It is a case of hearsay evidence locking horns with forensic evidence and one is called upon to determine what to rely on and my answer is that the forensic evidence is weightier and there is no reason to depart from it,” the judge said.
He cautioned State prosecutors against sustaining criminal trials where the evidentiary basis had collapsed, saying the law allows withdrawal of weak cases before judgment to prevent injustice.
The court noted that before instituting a trial the Prosecution should act independently, objectively, without malice and in the interest of justice.
“The prosecutors must fully comply with these provisions and cannot be heard to say "let the Court decide "where the evidentiary basis has collapsed,” said the judge.
“This should be strictly applied because of the consequences that arise out of a malicious prosecution and the great injustice of wrongful incarceration and anxiety of a criminal trial."
The Milimani Law Courts in Nairobi.
Photo credit: File | Nation Media Group
The court said Mr Adano suffered mental anguish, reputational damage, anxiety and financial loss after being tied to corruption charges for nearly a decade.
“The charge of corruption jeopardizes one’s reputation and diminishes a chance to get better employment,” the court said.
It also observed that even acquittal does not fully erase the stigma associated with corruption allegations because many employers require disclosure of previous criminal charges.
“The mere fact that one admits having been charged may raise eyebrows even if an acquittal follows,” it noted.
The court awarded Mr Adano Sh3.1 million in damages against the State agencies jointly and severally.
