The High Court has declared unconstitutional and null and void the decision by the Director of Public Prosecutions (DPP) to abandon the planned prosecution of former Kakamega Governor Wycliffe Oparanya over alleged corruption-related offences.
In a ruling delivered by Justice Benjamin Musyoki, the court found that although the DPP has the constitutional authority to determine whether a suspect should be prosecuted, the office overstepped its mandate by reconsidering the case based on alleged fresh evidence presented by Oparanya’s lawyers without referring the material to the Ethics and Anti-Corruption Commission (EACC) for further investigations.
The judge also quashed the DPP’s July 8, 2024 decision to withdraw consent to prosecute Oparanya, who had been nominated and appointed Cabinet Secretary for Cooperatives, Micro, Small and Medium Enterprises Development at the time.
The ruling followed a constitutional petition filed by Fredrick Mulaa challenging the decision to drop the intended prosecution.
Justice Musyoki noted that the DPP had initially agreed with EACC’s recommendation to charge Oparanya and other suspects before reversing its position following representations from the former governor’s legal team.
The court held that any reconsideration of the prosecution decision had to comply with the constitutional and statutory framework governing the relationship between prosecutors and investigative agencies.
“The 1st Respondent has no investigative powers,” the judge said, emphasising that the DPP’s role in investigations is limited to directing the relevant investigative agency.
According to the court, the DPP should have instructed EACC to investigate the alleged fresh evidence before making a new determination on whether the case should proceed.
“Only after the 2nd Interested Party investigated the alleged fresh evidence, would the 1st Respondent be constitutionally mandated to make a decision based on the same,” Justice Musyoki ruled.
The judge consequently found that the DPP had usurped EACC’s investigative mandate by acting on the material without first allowing the commission to examine it.
Sh56.7 Million at the Centre of the Case
The case stems from investigations into allegations that Oparanya received Sh56.7 million from directors of Sabema International Limited and Sesela Resources Limited.
EACC investigated suspected kickbacks linked to companies that were awarded contracts by the Kakamega County government between the 2013/14 and 2021/22 financial years.
Following its investigations, the commission recommended that Oparanya face charges of conspiracy to commit an offence of corruption, conflict of interest, abuse of office and money laundering.
The allegations relate to the period when Oparanya served as Kakamega governor.
However, the charges outlined in the investigation recommendations remain allegations and should not be treated as proof of guilt.
What the Ruling Means
The decision highlights the constitutional separation of responsibilities between Kenya’s anti-corruption investigators and the prosecution service.
While the DPP has the authority to independently assess evidence and decide whether criminal proceedings should be instituted or discontinued, the court’s reasoning underscores that this discretion must be exercised within the law.
EACC is responsible for investigating corruption and economic crimes, while the DPP determines whether the available evidence and applicable law justify prosecution.
The ruling makes clear that where a prosecution decision is reconsidered on the basis of new material requiring further factual examination, the investigative agency cannot simply be bypassed.
The judgment does not, by itself, establish that Oparanya committed the alleged offences. Instead, it addresses the legality of the process through which the DPP withdrew consent to prosecute him.The immediate significance is that the DPP’s July 2024 decision has been nullified. Any further action in the matter would have to comply with the law and the applicable court orders.The case also raises broader questions about accountability in the management of public resources, the independence of prosecutorial decisions and the safeguards required to ensure that corruption investigations are handled through constitutionally mandated procedures.
