Why court declined to hold prosecutors liable for Sh63bn Arror, Kimwarer dams’ scandal

The High Court has dismissed a petition by four lobby groups seeking to lift the immunity of two prosecutors involved in the Sh63 billion Arror and Kimwarer dams scandal, ruling that there was no evidence they acted unlawfully or in bad faith.

Justice Chacha Mwita, now a Court of Appeal judge, said Transparency International, Katiba Institute, the Kenya Human Rights Commission and Africa Centre for Open Governance (Africog) had failed to show that Geoffrey Obiri and Oliver Mureithi deliberately derailed the prosecution or abused their powers.

The organisations wanted the prosecutors held personally liable if former Treasury Cabinet Secretary Henry Rotich and other acquitted suspects sued the State for malicious prosecution.

They argued that the prosecutors had neglected their duties, exposing taxpayers to compensation claims.

But Justice Mwita said the prosecutors had explained their requests for adjournments, citing the withdrawal of key witnesses and the absence of a substantive Director of Public Prosecutions (DPP).

“The court is satisfied that the 2nd and 3rd respondents were forced by circumstances to act as they did and there was nothing to demonstrate that they did not act objectively and impartially or that their action was influenced by nepotism, favouritism, corrupt practices or improper motives,” the judge said.

The petition followed the acquittal of Mr Rotich and eight others on December 14, 2023, after the prosecution failed to present 41 witnesses. Trial magistrate Eunice Nyutu acquitted them under Section 210 of the Criminal Procedure Code and raised concerns about the prosecution’s conduct.

The lobby groups argued that the prosecutors should not enjoy immunity under Section 15 of the Office of the Director of Public Prosecutions Act because their actions were allegedly not taken in good faith.

The judge said the petitioners had not proved that the prosecutors deliberately withheld witnesses, ignored evidence or neglected their duties. They had also failed to show that witnesses’ withdrawal of statements was not genuine.

The prosecutors told the court that on August 10, 2023, the Directorate of Criminal Investigations informed the DPP that four witnesses had recanted their statements. Another key witness, the former director of the Public Procurement Regulatory Authority, had died.

Further communication from witnesses on August 30 confirmed their withdrawal, prompting Mr Obiri to seek directions from the DPP. The acting DPP directed them to await the appointment of a substantive office-holder to review the case.

Justice Mwita said there was no evidence that the prosecutors acted in bad faith or were influenced by external interests. He added that Section 15 protects officers from personal liability for actions undertaken in good faith while performing their duties.

Citing a Supreme Court decision, he said prosecutorial immunity safeguards independent decision-making by protecting officers from fear of personal liability.

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