The quarrel with prosecutors and the courts

By Dennis Ndiritu

While judges are tasked with a solemn duty to determine cases before them with strict adherence to the rule of law, they, sometimes, have tended to be guided by extraneous factors, such as public perception. 

In the case of the Governor of Samburu County Moses Lenolkulal Kasaine, Chief Magistrate Douglas Ogoti slapped the accused with a bail of Sh100 million, much to the ecstasy of excited Kenyans. The hefty bail terms imposed, however, flew in the face of Kenya’s bail and bond rules. This decision would be quashed by Justice Mumbi Ngugi who set bail at Sh10 million. 

Earlier, Justice Jessie Lessit, in ‘Republic v Zacharia Okoth Obado [2018] eKLR’, while affirming the onus of the prosecution to prove presence of compelling reasons to deny bail, took the extraordinary step of denying bail in the absence of witness statements and other relevant evidence, in essence punishing the applicant for the prosecution’s failure to avail evidence in time, and making the argument that political influence was grounds for denial of bail. It was a decision that reeked of judicial activism through and through.

The same ludicrous reasoning was perpetuated in ‘Meru County Government v Ethics & Anti-Corruption Commission’ [2018] eKLR, where between March 20, 2017 and April 15, 2017 pursuant to a search warrant issued by the Chief Magistrate, the Respondent accompanied by police officers entered the offices of the Appellant’s Officers and carted away documents from the Appellant’s Procurement Department without the Appellant’s officers being allowed an opportunity to make copies of said documents. The Court would later argue that a county Government cannot sue to enforce the rights contained in the Bill of Rights – that although the county government fit the definition of a person under Article 260 of the Constitution of Kenya, the Bill of Rights conceptualises human rights and therefore, a non-natural person cannot claim any of the rights under the framework.

Lawyer Paul Mwangi has recently accused the Judiciary of being “too diplomatic” with corruption cases, and of extending courtesies which have become the perfume that masks the smell of rotten transactions. He was speaking in reference a decision by a magistrates court to fine a convict Sh600,000 for theft of public funds to the tune of Sh12 million. Mwangi attributed this lenient fine to extraneous influence on the judge. 

Judiciary stands accused of being “too diplomatic” with graft cases, and of extending courtesies which have become the perfume that masks the smell of rotten deals”

In the controversial case of Kamlesh Pattni, who faced nine criminal charges related to the Goldenberg scandal, he walked scot-free after the High Court ruled that the businessman would not get fair trail due to delay in prosecuting the loss of Sh5.8 billion in fraud. Justice Joseph Mutava issued prohibitory orders to the Chief Magistrate’s court barring it from proceeding with the trial of Pattni and restrained the police from prosecuting him further in relation to the case. This brought to an end the lengthy case that had begun in 1993, but also served as the poisoned chalice that hounded Justice Mutava out of office.

Recently, Kiambu Governor Ferdinand Waititu’s home was raided by Ethics and Anti-Corruption Commission sleuths in search of evidence for corrupt allegations following his submissions before the Senate to answer audit queries. These morning raids, often sanctioned by courts, have become synonymous with EACC since the government stepped up the war against corruption. Sadly however, these raids only signify the lack of evidence by the commission, as the raids are meant to acquire evidence to be used in court. It is also evidence of a commission struggling to stay afloat amid the overwhelming evidence of inefficiency and incompetency in its mandate. 

No country can successfully combat graft without a robust and independent judiciary. While it is important to appreciate the progress made by the Kenyan Judiciary in the war on corruption, its performance has been subpar. Often, corruption cases brought to court take too long to conclude, which blows the wind off the sails of investigators and prosecutors. It is time we established time frames for resolution of such cases before we completely lose the plot. 

At the same time, the effectiveness of the judiciary is dependent on the efficiency of the prosecution in conveying suspects to court and proving the cases presented. Recently, the role of the Office of the Director of Public Prosecutions (ODPP) has been as put under a strict public microscope owing to a long-running streak of shoddily investigated and prosecuted cases that lead to subsequent inevitable termination, stays or withdrawal. The most recent is the exoneration of Deputy Chief Justice Philomena Mwilu in an ‘abuse of office’ case.

In its decision, Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyot, Chacha Mwita and William Musyoka reprimanded the Directorate of Criminal Investigation for illegally obtaining evidence intended to be used against her in court. In a unanimous decision, the judges found that the Director of Criminal Investigations George Kinoti had obtained orders from the magistrates court to investigate a Kenya Commercial Bank account operated by manufacturing equipment dealer Blue Nile East Africa, which orders the DCI relied on to gather evidence against the judge. Thus the judges held that probing the DCJ’s accounts and transactions with Imperial Bank was a breach of her privacy. 

Increasingly, it is becoming apparent that our investigative and prosecutorial agencies are merely often engaged fishing expeditions to gather evidence in their cases, which also explains the increase in Friday evening arrests of suspects, popularly as “Kamata Kamata Friday”. This has been decried in Michael Kamau, Charity Ngilu & 10 Others v EACC & 2 Others where the court, after commending the investigative prowess of some officers, noted that there are many others who arrest first and seek to investigate later, which undermines the administration of justice and public confidence in the justice system.

Observers decry a desire by the prosecution to sabotage cases presented in court, which can only be attributed to external influence. This was the situation in the Assa Nyakundi murder case where the prosecution sought to downgrade the charges from murder to manslaughter, powers only courts can exercise. It speaks to collusion between the prosecution and the defence to create loopholes in the case for the eventual crumble of the case. This is can also be attributable to a lukewarm relationship between investigative agencies and prosecutors, who are under the command and direction of different agencies.  (

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