Four lobby groups have moved to court to have two public prosecutors held responsible for the alleged mishandling of the Ksh63 billion Arror and Kimwarer case.
In a petition filed before the High Court of Nairobi by civil society groups led by the Kenya Human Rights Commission, it is alleged that the two prosecutors fumbled the case that saw former Treasury Cabinet Secretary Henry Rotich acquitted.
The lobby groups are, therefore, seeking to have the prosecutors personally held responsible for the case even as they maintained that billions were lost in the dam project.
In backing their argument, the groups cited instances where the prosecution failed to avail enough witnesses to testify against the former CS and the co-accused persons.
"By failing to call witnesses, in the Ksh63 billion Arror and Kimwarer dams case, because of “firm instructions not to proceed with the case” the Respondents violated Article 157(10). Article 157(10) forbids the DPP from being under the control of direction or control of any person or authority in the exercise of prosecutorial powers or functions.
"By the same token, the Respondents violated Article 73(2) requiring objectivity and impartiality in decision-making, barring decisions influenced by nepotism, favouritism, other improper motives or corrupt practices. Similarly, the DPP’s decision to halt the prosecution because of instructions from third parties violated Article 249 on the independence of the independent officeholders," read the petition in part.
The four civil groups also acknowledged that Rotich could sue the state following his acquittal, a move that would cost the taxpayers.
Consequently, the groups are seeking to have the Court direct that the prosecutors should be the ones to pay for damages should the former CS sue the government.
"Petitioners sue to lift the immunity of the prosecution counsel and to hold them personally liable if the accused persons sue for malicious prosecution.
"Although the public has already lost Kshs 63 billion, it could lose more if, despite this petition, the accused persons sue and are paid damages for malicious prosecution from the public purse," read the petition in part.
The petition by the lobby groups comes barely two weeks after Rotich was acquitted by Magistrate Eunice Nyutu.
According to the magistrate, the prosecution did not table enough evidence to prove its case.
Meanwhile, Rotich blamed his woes on political differences between former President Uhuru Kenyatta and President William Ruto that escalated during the second term of the Jubilee administration.
“There was some choreographed intention here. The turn of events could give you an indication but it did not occur to me at first that the charges were politically instigated,” he stated during a media interview in December 2023.
