NAIROBI, Kenya – The High Court has nullified the Office of the Director of Public Prosecutions (ODPP) decision to drop a corruption case involving Co-operatives Cabinet Secretary Wycliffe Oparanya over allegations linked to Sh56.7 million.
Justice Benjamin Musyoki ruled that the ODPP acted irregularly and unconstitutionally when it reversed its earlier decision to prosecute Oparanya over alleged corruption involving funds reportedly received from directors of two companies.
The judge declared null and void the ODPP’s July 8, 2024 decision to review and withdraw its earlier recommendation to charge the former Kakamega governor.
The court also issued an order of certiorari quashing the decision, finding that the ODPP had encroached on the investigative mandate of the Ethics and Anti-Corruption Commission (EACC) by considering what it described as fresh evidence without referring the material back to the commission for further investigations.
“A declaration is hereby issued that the 1st Respondent’s decision to review its decision to charge the 1st Interested Party … was irregular and unconstitutional and it is therefore null and void,” Justice Musyoki ruled.
The judgment challenges the process through which the prosecution abandoned its earlier position, but it does not amount to a finding that Oparanya committed the alleged offences.
EACC Had Recommended Prosecution
The case arose from EACC investigations into allegations that Oparanya received Sh56,740,325 from directors of Sabema International Limited and Sesela Resources Limited.
The payments were linked to contracts awarded by the Kakamega County government during the period Oparanya served as governor.
After completing its investigations, the EACC recommended that he face charges of conspiracy to commit an offence of corruption, conflict of interest, abuse of office and money laundering.
According to the judgment, the commission forwarded its recommendations to the ODPP, which initially returned the file for further investigations before eventually agreeing with the recommendation to prosecute.
However, on July 3, 2024, Oparanya’s advocate wrote to the ODPP seeking a review of the decision to charge him.
The prosecution subsequently reconsidered its position and directed that the file be closed for lack of sufficient evidence, unless further evidence emerged.
It was this reversal that prompted the court challenge.
Court Faults ODPP For Bypassing EACC
The petition was filed by Fredrick Mulaa, who argued that the ODPP had acted contrary to its own guidelines by reviewing the prosecution decision without consulting the EACC, the agency that had investigated the allegations.
The EACC supported the petition, maintaining that it had investigated claims that Oparanya received kickbacks from companies awarded tenders by the Kakamega County government.
Justice Musyoki found that the ODPP could not independently consider the new material in a manner that usurped the investigative role of the anti-graft agency.
The court’s decision nullifies the July 2024 withdrawal decision on grounds of procedural and constitutional irregularities.
Judge Declines To Challenge Oparanya’s Appointment
Justice Musyoki declined other prayers seeking orders concerning Oparanya’s appointment to Cabinet and the future withdrawal of prosecutorial decisions.
The judge noted that Oparanya had neither been charged nor convicted and said there was no basis for the court to fault the appointment and vetting process.
“This, however, is not to be taken as lowering the bar of requirement for integrity in leadership and public service,” the judge said.
The court therefore separated the legality of the ODPP’s decision from the question of Oparanya’s suitability for public office.
Parties Ordered To Bear Own Costs
The court directed each party to bear its own costs, describing the matter as public interest litigation.
The ruling places the ODPP’s handling of the case under judicial scrutiny, particularly its decision to reconsider a prosecution recommendation arising from EACC investigations without referring the fresh material back to the commission.
The allegations concern transactions linked to contracts awarded during Oparanya’s tenure as Kakamega governor.
