Another office of the Director of Public Prosecutions (ODPP) and the Ethics and Anti-Corruption Commission(EACC) clash is expected in court on March 4, 2024, as the latter opposed an attempt to terminate the Ksh1.7 billion graft case against the former GDC Managing Director.
This is after DPP, yet again, filed an application seeking to drop charges against former Geothermal Development Company(GDC) Managing Director Silas Simiyu six days after he sought to drop charges against former Kenya Pipeline boss Charles Tanui.
In the two cases, DPP Renson Ingonga says that his decision to drop the case against Simuyu and Tanui is premised on grounds of a lack of sufficient evidence to prove the graft cases facing them.
However, the EACC has opposed the DPP's move to withdraw the graft cases against the duo arguing that the same is an abuse of the legal process and not made in the public interest and the interest of the administration of justice.
Today in the case of Simiyu, though the application for withdrawal was not canvassed after the defence team sought time to file a response, EACC through lawyer Hassan Muhamud filed an affidavit vehemently opposing the DPP decision to terminate the case arguing the move was against the Supreme Court decision that had ordered the case to proceed to its logical conclusion.
"The accused persons herein had unsuccessfully challenged their prosecution all the way to the Supreme Court but on January 27, 2023, the Supreme Court dismissed their final appeal and ordered that the trial pending before this court continue to its conclusion and on a priority basis," Muhamud told the court.
While arguing for the court to disallow the withdrawal, the Commission stated that following the directive given by the Supreme Court in its judgement the only option is to have the case proceed to its logical conclusion.
"The grounds raised by the DPP for withdrawal of the charges specifically the aspect of the market survey had been canvassed in the court of appeal and Supreme Court and the courts held that they are triable issues," Lawyer Muhamud said.
EACC added that there is no new evidence that has been adduced before the DPP exonerating Simiyu and his accused persons from the offences with which they are charged to warrant withdrawal of the charges.
The Anti-graft agency further stated that late last month the High Court made a finding regarding the recent trend by the DPP on withdrawal of cases, that the task of analyzing evidence adduced in a case and finally pronouncing whether the accused is guilty or innocent belongs to the court itself(the judicial officer presiding at the trial) and not the parties or the litigators.
"By a ruling delivered on January 31, 2024, Anti-Corruption High Court Judge Justice Sifuna clamped down on unjustified withdrawal of graft cases declaring that it is the duty of the Court (not ODPP) to determine the sufficiency of evidence on matters before it or the innocence of the accused," EACC lawyer stated.
"I urge the court to disallow the application by DPP to terminate that case and in the interest of justice therefore that this matter proceeds to its logical conclusion on a priority basis as directed by the Supreme Court of Kenya," Muhamud said.
The DPP wants the court to allow him to drop the case against the ex-GDC boss Tanui and his former workmates Nicholas Karume Weke and Peter Ayodo Omenda and Caleb Indiatsi under section 87(a) of the Criminal Procedure Code(CPC) on grounds of inadequate evidence to prove that the allegations of fraudulently procuring the Rig move services at a cost of Ksh 42,746,000 per Rig Move, against the market price of Ksh15,000,000 each.
"Upon review of the evidence and the issues raised by Simiyu, it came to the attention of the DPP that there was insufficient evidence to confirm that Rig move price was exaggerated, since it was unclear whether Geothermal Development Company conducted a Market survey to establish the market price for Rig moves and the same was communicated to the Evaluation Committee," Senior Principal Prosecution counsel Duncan Ondimu said.
Similarly, on Friday last week, the DPP sought to withdraw the Ksh30 million graft case against Tanui, a bid that was thwarted by EACC.
This is after EACC vehemently opposed the withdrawal saying it would amount to an abuse of the court process and a waste of judicial time as the matter is at the tail end with the Investigating Officer set to testify.
"In as much as the DPP has the discretion to withdraw matters at any given point, that discretion must be exercised judiciously. The DPP cannot withdraw a case without having due regard to the public interest and the interest of justice," EACC advocate Dona Maranga stated
In his ruling, the magistrate Victor Wakumile concurred with the EACC and declined to drop the case against Tanui.
"I am totally in agreement with the EACC that the DPP’s discretion to withdraw matters must be exercised judiciously with due regard to the public interest and the interest of justice," Wakumile ruled while dismissing the DPP's application.
Aggrieved by the decision the DPP moved to the High Court where he has since obtained orders suspending Tanui's trial pending the hearing of his review application.
