Court declares DPP's decision to drop Sh2.2b Oparanya graft case unconstitutional

High Court quashes DPP’s decision to drop corruption charges against Oparanya. [Courtesy]

Director of Public Prosecutions Renson Ingonga has suffered a major setback after the High Court quashed his decision to withdraw Sh2.2 billion in corruption charges against Cabinet Secretary Wycliffe Oparanya.

In a judgement rendered by Justice Benjamin Musyoki, the DPP’s July 8, 2024 decision to review and reverse an earlier decision to charge Oparanya with corruption-related offences was declared unconstitutional, irregular and void.

"A declaration is hereby issued that the DPP's decision to review its decision to charge Oparanya with the offences of conflict of interest, abuse of office, money laundering and conspiracy to commit an offence of corruption contained in its letter dated 8th of July 2024 was irregular and unconstitutional and it is therefore null and void," the judge ordered.

Hon. Wycliffe A. Oparanya, EGH. [Courtesy]

The judge also issued an order of certiorari quashing the decision, dealing a blow to the prosecution’s attempt to close the case without charging the former Kakamega governor.

"A certiorari is hereby issued quashing the DPP's decision to review its decision to charge Oparanya with the offences of conflict of interest, abuse of office, money laundering and conspiracy to commit an offence of corruption contained in his letter dated the 8th of July 2024," Justice Musyoki stated.

Oparanya is now expected to face charges of conflict of interest, abuse of office, money laundering and conspiracy to commit an offence of corruption arising from allegations made against him during his tenure as Kakamega governor.

The case followed investigations by the Ethics and Anti-Corruption Commission (EACC), which alleged that Oparanya irregularly benefited by Sh56.7 million from companies that received contracts from Kakamega County between the 2013/14 and 2021/22 financial years.

The companies under investigation were linked to 60 contracts valued at more than Sh2.2 billion, with EACC alleging that Oparanya received benefits and kickbacks through companies associated with him.

EACC recommended that Oparanya, his spouse, county officials and company directors be prosecuted.

The ODPP initially concurred with EACC’s recommendation in December 2023.

However, after Oparanya’s lawyers sought a review, Ingonga reversed the decision in July 2024 and directed that the file be closed for lack of sufficient evidence to sustain a conviction.

In the July 8, 2024 letter, the ODPP stated: “In the circumstances and bearing in mind the standard of proof required in criminal cases, which is proof beyond any reasonable doubt, the Director of Public Prosecutions finds that it will be an uphill task to secure a conviction in this matter.”

But Justice Musyoki found that the ODPP could not consider alleged fresh evidence and make a unilateral decision without involving EACC, which had conducted the investigations.

“Only after the EACC investigated the alleged fresh evidence would the ODPP be constitutionally mandated to make a decision based on the same,” the judge ruled.

“Anything short of that would be usurping the constitutional and statutory powers of the EACC, a separate constitutional and independent body.”

The judge further found that the process through which the charges were withdrawn was not transparent and did not serve the public interest.

“It was shrouded in mystery and therefore worked against the public interest, hence in violation of Article 157(11) of the Constitution,” Justice Musyoki said.

The judge rejected the argument that prosecutorial independence gave the DPP unlimited discretion to review the case without consulting investigators.

The court noted that although the DPP has the constitutional mandate to make prosecutorial decisions, that power must be exercised within the law and with accountability.

EACC had opposed Ingonga’s decision, maintaining that its investigations had established sufficient grounds for prosecution.

It said it had not been consulted before the ODPP reversed its earlier decision to prosecute Oparanya.

Justice Musyoki, however, stopped short of declaring Oparanya’s appointment as Cabinet Secretary invalid.

He said the former governor had been nominated and vetted through the constitutional process and that the court had not been presented with the National Assembly’s vetting proceedings to establish any illegality.