How ex-PS Lilian Omollo beat charges in multi-million-shilling NYS case

By  Sam Kiplagat

Court Reporter

Nation Media Group

Former Public Service and Youth Affairs Principal Secretary Lilian Omollo has been freed of charges linked to the National Youth Service (NYS) scandal after the Court of Appeal allowed the termination of her case.

A three-judge bench of the appellate court overturned an earlier decision by the High Court declining to terminate charges of abuse of office and conspiracy to defraud against Ms Omollo.

The court said compelling the Director of Public Prosecutions (DPP) to proceed with a prosecution he no longer believes in, for lack of evidence or because it is contrary to the public interest, would create an untenable situation.

It would, with near certainty, lead to a waste of scarce prosecutorial and judicial resources while saddling the accused with oppressive costs and anguish, the court said.

“Applying the criteria to the instant application, we are persuaded that the averments made by Evah Kanyuira, Prosecution Counsel, clearly demonstrated that the DPP independently applied his mind in making the decision to discontinue the prosecution of the appellant,” the court said.

The request was made under Articles 157(6)(c) and 157(11) of the Constitution, sections 4 and 5 of the Office of the Director of Public Prosecutions Act, 2013, and the National Prosecution Policy.

In her application, the former PS argued that none of the 12 witnesses who had testified had named her or implicated her in any wrongdoing.

One of the courts hearing the case allowed the application to withdraw the charges, but another magistrate declined to grant the request.

The matter was escalated to the High Court, which in February 2024 dismissed the application, agreeing with the magistrate despite the DPP not opposing the application.

Ms Omollo then moved to the Court of Appeal.

The three-judge bench ruled on Friday that the DPP had clearly demonstrated that he independently applied his mind in deciding to discontinue the prosecution.

In seeking to withdraw the charges against Ms Omollo, the DPP said that after reviewing the decision to charge her, it was established that receiving and approving the accountable documents in question was not within her scope of work.

Further, the DPP said it had become apparent that none of the witnesses had given, or would give, evidence that directly or indirectly implicated Ms Omollo.

“It would seem, therefore, that the DPP may not have sufficient evidence to sustain the charges against the appellant. In the circumstances, we are of the view that the trial court erred in refusing the DPP consent to discontinue the prosecution of the appellant,” said the court.

The court said the High Court failed to take into account relevant factors in exercising its discretion and erroneously dismissed the application for revision.

The DPP said he had reviewed the decision to charge Ms Omollo based on the evidential test and established that the alleged procurement process involving the payments in question had been concluded before she was appointed PS for Public Service and Youth.

The court noted that there were numerous pending bills at NYS dating back to the 2013/2014 financial year, which were incurred before her appointment to the State Department of Public Service and Youth.

Ms Omollo then appointed the first verification committee to ensure that only payable pending bills were recommended for payment.

None of the people appointed exclusively by the former PS to the first verification committee was charged in the ongoing cases.

The court further noted that the principal secretary was not the AIE holder responsible for approving accountable documents such as payment vouchers and other documents presented before the courts.

Ms Omollo was charged on May 29, 2018, over the alleged loss of funds at NYS.

She was charged alongside other senior government officials, including former NYS Director-General Richard Ndubai, and traders who allegedly benefited from payments for goods and services that were never supplied to the agency.

She denied charges of abuse of office, conspiracy to commit a felony and money laundering.

The prosecution alleged that the former government officials conspired to commit an economic crime by allowing the payment of Sh167.5 million to three companies — Firstling Limited, Kunjiwa Enterprises and Ameritrade Limited.

The offences were allegedly committed on diverse dates between April 6, 2016, and May 13, 2017.

Ms Omollo had stated that when she assumed office, she encountered more than 5,000 payment claims worth Sh10 billion from various suppliers to NYS.

Some of the claims, she said, dated back to the 2013/2014 financial year, when NYS was under the Ministry of Devolution and Planning.

According to Ms Omollo, she initiated multiple and extensive financial and management controls to strengthen NYS' financial systems, controls and cost containment in good faith, but was instead arrested and charged.

Ms Omollo said she was not responsible for approving payments, arguing that available accounting documents and Integrated Financial Management Information System (IFMIS) footprints identify with certainty the origin and responsibility for all purchase orders, invoices and payments generated and transacted by NYS.

Follow ourWhatsApp channel for breaking news updates and more stories like this.