, NAIROBI, Kenya, Mar 9 – The High Court on Wednesday declined to prohibit the prosecution of former Cabinet Secretaries Charity Ngilu and Michael Kamau on the basis of their argument that the Ethics and Anti-Corruption Commission was not properly constituted when it recommended charges against them.
While Justices Mumbi Ngugi, Joseph Onguto and George Odunga agreed that the EACC was not properly constituted on account of it not having any commissioners at the time, they found that the decision to prosecute lay squarely with the Director of Public Prosecutions who should ideally be guided by the evidence available; the strength of which was not diminished by whether or not it was proper for the EACC to make recommendations on prosecution in the absence of commissioners.
- Ngilu is charged with obstructing the EACC's investigations into the matter when she was Lands Minister.
- Kamau on the other hand stands accused of wilfully failing to comply with applicable procedures and guidelines relating to the management of public funds, engaging in a project without prior planning, wilful failure to comply with the law relating to procurement and abuse of office.
“The mere fact that information emanating from a particular body was released without authority of that body, does not bar the DPP from making use of that information as long as the information is admissible in evidence,” Odunga read on behalf of the judges.
They also found that President Uhuru Kenyatta acted unlawfully when he purported to set an investigative deadline for the Commission when he made public in Parliament what has popularly come to be known as the #ListofShame.
The judges also found that the other objections raised by Kamau and Ngilu, in opposition to their prosecution, were best canvassed in the trial court which is charged with making the finding of guilt or innocence.
Justice Ngugi had on June 9, 2015 declined to stop the prosecution of Kamau pending the outcome of his petition for the reason that he would not suffer prejudice.
Environment and Land Division Court judge Lucy Gacheru did however halt Ngilu’s criminal case pending the outcome of a civil case to do with a Sh8 billion parcel of land in Karen whose ownership is in dispute.
READ: Court temporarily halts Ngilu’s Karen land case
Ngilu is charged with obstructing the EACC’s investigations into the matter when she was Lands Minister.
Kamau on the other hand stands accused of wilfully failing to comply with applicable procedures and guidelines relating to the management of public funds, engaging in a project without prior planning, wilful failure to comply with the law relating to procurement and abuse of office.
The particulars of the offence are that he “ignored the design of the Kamukuywa-Kaptama-Kapsokwony-Sirisia Road which had been done by Engiconsult Consulting Engineers Limited at the cost of Sh33,303,600 and entering into a Memorandum of Understanding under which the resident engineer redesigned the same road.”
A Memorandum of Understanding which court records show, “had the effect of quantity variation for works exceeding 15 percent of the quantity of the original contract between the Government of Kenya and Kundan Singh Construction Limited.”