Former Samburu Governor Moses Lenolkulal has suffered a setback in his bid to walk away scot-free in the Ksh84 million corruption case after the High Court declined to compel the Directorate of Public Prosecutions (DPP) to terminate it.
Justice Esther Maina says that the DPP acts discretionally and can not be compelled by any party to withdraw a criminal case before determination.
"The DPP cannot be forced to act on a pending criminal matter and this court cannot interfere and compel him to withdraw the graft case against Lenolkulal. The court finds there is no granted right to Lenolkulal for the DPP to withdraw the case against him and such a withdrawal would be discretionary.
"This court can only interfere with the exercises of the DPP discretion only if it is shown that the discretion was abused which was not demonstrated in this case. So the court has declined to allow the orders sought in the application and has dismissed it with cost," Judge Maina ruled.
Lenolkulal had lodged an application before the High Court seeking orders compelling the DPP to terminate his graft case which is ongoing before Milimani Corruption Court Magistrate Thomas Nzioki over the illegal supply of petroleum products to the county government.
The former county boss had accused the DPP of bias in deciding whom to end criminal cases against.
He informed the court that the DPP had late last year attempted to terminate the case against him but changed his decision.
Lenolkulal claimed that the move to change his decision to drop the case against him was illegal.
The court decision now means that the former governor will face full trial in the corruption case against him and others.
In the case, Lenolkulal has been charged with abuse of office and conflict of interest leading to the loss of public funds.
He is accused of using his company Oryx Service Station to supply petrol and diesel to the county.
The charge sheet indicates Lenolkulal knowingly acquired a direct private interest in contracts between Oryx and Samburu County for the supply of fuel.
He is facing the charges alongside Hesbon Ndathi, and nine others who are alleged to have committed the offence between March 27, 2013, and March 25, 2019, in Maralal town.
When the case resumed for the hearing this week, a senior police officer Joel Nyongesa revealed to the court that there was no procurement for the multi-million shillings tender for the supply of petroleum products to the Samburu County during the administration of former Governor Lenolkulal.
While being cross-mined by defence lawyers led by Nelson Havi, investigating officer Joel Nyongesa informed the graft court that no procurement was done for the supply of automotive fuel at the county government.
"I confirm my earlier testimony that Oryx Service Station, a company associated with Governor Lenolkulal was never procured to supply automotive fuel to the county government of Samburu. They were engaged through a Local Purchase Order LPO," the officer stated.
He told the court that investigations revealed that the Oryx Service Station started trading with the county two months after Lenolkulal was sworn in as the governor of Samburu County.
"Investigations revealed that the period in which Oryx Service Station started doing business with the county government was from May 9, 2013, when the firm received the first payment through a cheque so no procurement was done," Nyongesa said.
Further, the court heard that the fuel station was among the firms in the list of pre-qualified entities but the investigators were unable to tell how the same station found itself in the list.
Nyongesa also revealed that the fuel station received 231 payments totalling over Ksh84 million through KCB Bank Maralal branch for the alleged supply of fuel at the county and at no point did the governor declare a conflict of interest for having his company awarded the deal to supply the petroleum products.
He said that the governor, being a state officer, abused his office since he allowed his fuel station to trade with the county government.
"I can confirm that the governor did declare a conflict of interest in the matter as per the law," the officers said.
Further, the officer stated that Lenolkulal influenced his junior officers at the county to have the 231 payments made to his fuel station accounts since he was the county boss.