Case in irregular procurement at Geothermal and Development Company to continue, Court rules
22:05:2024: Anti-Corruption Court at Milimani has ruled against an application filed on 13th Feb 2024 under a certificate of urgency seeking to withdraw charges in Anti-Corruption Case No. 20 of 2015.
Chief Magistrate Hon. Nzioki agreed with the Ethics and Anti-Corruption Commission’s submissions that the intended withdrawal of the case was not in the public interest, the interest of administration of justice or intended to prevent an abuse of the legal process.
“The DPP’s sudden change of position is an unjustified deviation from the previous submissions on record before the superior courts which supported the charges,” the Court averred.
ACC No. 2015 Republic Vs Nicholas Karume and 7 others is a case of irregular procurement of rig move services at Geothermal and Development Company. It is alleged that in the Financial Year 2010/2011 GDC entered into a contract for Rig Move services at Menengai site with Bonfide Clearing and Forwarding Limited (BCFCL) for Rig Move Services, at a cost of 19,550,000 per Rig move and in the following Financial Year of 2012/2013, GDC again procured the same services from the same Company at an exaggerated cost of Kes42,746,000 per rig move, a more than 100% increase.
It is a protracted case that was instituted in November 2015 when the DPP concurred with the recommendations of EACC to prosecute after investigations. After arraignment, the first accused filed a Judicial Review in the High Court seeking to quash the charges which the Court granted and issued prohibition orders on 19th April 2016. Consequently, accused three, four and five also filed a similar application and got similar orders on 20th December 2016 quashing trial proceedings.
Aggrieved by the High Court’s decisions, three separate appeals were lodged in the court of Appeal by the DPP and the EACC in 2017. The Court of Appeal consequently overturned the High Court decision in those appeals and held that the High Court judge misdirected himself in prohibiting prosecution of the accused.
Aggrieved by the Court of Appeal decision, two appeals were lodged in the Supreme Court by accused one, three, four and five. The Supreme Court, in it’s judgement of 27th January, 2023 dismissed the petitions and ordered that ACC. NO. 20 of 2015proceed on a priority basis.
As the appeals were pending, and pursuant to the decision in the Court of Appeal in Civil Appeal No. 102 of 2016: Eng. Michael Sistu Mwaura Kamau vs EACC & 4 others, charges against accused two, six, seven and eight were withdrawn on 18th October 2017. This was done undersection 87 (a) of the Criminal Procedure Code on a technicality that the EACC conducted investigations when it was not properly constituted.
Regarding the accused persons who vide the supreme court judgement were directed to face trial, the DPP stated that the case against the three accused persons be withdrawn under section 87(a) of the Criminal Procedure Code and went on to file, on 13th February 2024, under certificate of urgency an application seeking to withdraw charges against accused one, three, and five.
EACC filed submissions opposing the application. The Commission focused on the public interest, fair and rational administration of justice and invited the Court to note that the DPP had concurred with recommendations by the EACC to charge the accused persons and further defended the position that there was sufficient evidence to charge the accused persons in the High Court, Court of Appeal and the Supreme Court.
The matter came up for ruling today and Hon. Nzioka, in dismissing the said petition held, inter alia, that the application was not founded on any sound reasoning and was intended to defeat the Supreme Court Judgement and scheduled for a mention on 25th June, 2024for pre-trial directions.
