The Office of the Director of Public Prosecutions (ODPP) Noordin Haji is now seeking to withdraw a Sh221million graft case that if allowed will be among a pile of high profile corruption cases to be dropped through DPP’s initiative.
In the matter, Haji wants corruption charges filed against two people and three trading companies implicated in the Sh221million Standard Gauge Railway (SGR) compensation scandal.
They include David Barno Some, Esther Chebet Barno, Dasahe Investment Limited, Keibukwo Investment Limited and Olomotit Estate Limited.
They were arraigned on August 13, 2018, on charges of unlawful acquisition of public of land in Nairobi — parcels LR No 9084, 9085, 9086, 9087 and 9088 — in a case investigated by the Ethics and Anti-Corruption Commission (Eacc).
Haji has since petitioned the trial magistrate to allow him to withdraw charges against the five.
The DPP now says it is National Land Commission (NLC) officials who should be held responsible for the loss of public funds.
However, initially, Haji held that there was criminal culpability on the recipients.
They were allegedly paid Sh221,375,000 d by the NLC on behalf of the Kenya Railways Corporation for the SGR project.
They were charged alongside 12 others, including former NLC chairman Muhammad Swazuri, former Kenya Railways Managing Director Atanas Maina and officials at the Ministry of Lands.
“The DPP received information regarding the matter in court that necessitated the review of the evidence … As a result, the applicant has directed that the charges against the five accused be withdrawn under section 87(a) of the Criminal Procedure Code. It is in the interest of justice that this court grants the orders sought.” Nyamosi says in the application.
The application is supported by an affidavit sworn by Office of the Director of Prosecutions Principal Counsel Anne Pertet, who says that the DPP’s decision was occasioned by several letters written by the five accused persons explaining their role in the disputed payouts.
Court documents indicate that 24 prosecution witnesses have testified in the case and what is remaining is the cross-examination and re-examination of the investigating officer.
“Upon review of the entire case and evidence adduced, it is clear to the DPP that the main issue involves the process leading to the issuance of titles and the process of compensation upon the acquisition of a private property by the National Land Commission.” Pertet in the affidavit.
“The aforementioned processes are handled by the specified statutory institution(s) through its respective government officials. Moreover, the said officials are the custodians [of] and/or expected to have reasonable access to the relevant official records whilst discharging their mandate,” she adds. Ms Pertet says that it is the NLC that undertakes the process of compulsory land acquisition and compensation.
She adds that: “The DPP is of the considered view that the said officials [at the NLC] should be held responsible for the loss of public funds they failed to discharge their statutory and fiduciary duties as per the dictates of the law.” Pertet says.
She explains that NLC is the organ equipped under the law to conduct due diligence to ascertain and verify the ownership of any parcel of land that is subject to compulsory acquisition.
“The DPP has re-evaluated the role played by the respondents and has [decided] that it is in the interest of justice that the charges levelled against them be withdrawn as they [relied] on the government’s position in the process of the disputed compensation claim.” Pertet adds.
The official adds in her affidavit that the decision to withdraw the charges is guided by public interest, interest of administration of justice and the need to prevent abuse of the legal process. The DPP wants the application determined urgently because hearing is set to resume next month.
