Blow to Oparanya as court nullifies withdrawal of Sh2.2b graft case

Cooperatives and MSMEs Cabinet Secretary Wycliffe Oparanya, has suffered a major setback after the High Court quashed the Director of Public Prosecutions’ decision to withdraw Sh2.2 billion corruption charges against him.

Justice Benjamin Musyoki of the Milimani Anti-Corruption High Court in Nairobi ruled that the DPP Renson Ingonga’s action was “unconstitutional, irregular and void,” and was done without transparency, accountability, or consultation with the Ethics and Anti-Corruption Commission (EACC).

“The 1st respondent(DPP) usurped the powers of the 2nd interested party(EACC) when it received alleged fresh evidence and unilaterally decided to review its decision to charge without reference to the 2nd interested party. It assumed powers it does not possess either in the Constitution or statute,” the judge said.

The court issued an order of certiorari quashing the DPP’s letter of July 8, 2024, which had directed the closure of the corruption case against Oparanya.

"A declaration is hereby issued that the 1st respondent’s decision to review its decision to charge the 1st interested party with the offences of conflict of interest, abuse of office, money laundering and conspiracy to commit an offence of corruption contained in its letter dated July 8, 2024 is irregular and unconstitutional and therefore null and void. A writ of certiorari is hereby issued quashing the said decision," Justice Musyoki ordered in his judgment.

However, the court stopped short of invalidating Oparanya’s appointment to the Cabinet, holding that his nomination followed the constitutional process under Article 152(2) of the Constitution.

“In the case before me, the appointment of the 1st interested party (CS Oparanya) followed the constitutional process… this court would be overstepping on the mandate of the executive if it were to allow prayer ‘f’ of the petition, yet the National Assembly is not a party to the petition,” Justice Musyoki said.

The judge said that although Oparanya had not yet been charged or convicted, “absence of this should not be a bar to intervention of the courts in matters of this nature.”

The court faulted the DPP for failing to consult the EACC and the complainant before making its decision.

“It is indisputable that the DPP's letter dated July 8, 2024 was written without consulting the EACC. The wording of the letter is clear that the decision was informed by a request by the 1st interested party’s advocates through their letter dated 3-07-2024,” Justice Musyoki said.

He stressed that the DPP had a constitutional duty of accountability.

“The powers donated to the 1st respondent by the Constitution belong to the people and the 1st respondent exercises those powers on behalf of the people of Kenya. In that case, it has a constitutional duty to explain to the people the reasons and justification for its actions. That is what the principle of accountability entails,” The judge noted

Oparanya, who served as Kakamega Governor for two terms, was accused of allegedly receiving kickbacks from six companies awarded 60 contracts worth more than Sh2.2 billion.

These include AFBA Construction Company Limited, Western Cross Express Limited, Sabema International Limited, and Sesela Resources Limited.

On October 12, 2023, the EACC recommended to the ODPP that Oparanya, his spouse, some county officials, and company directors be charged with conspiracy to commit corruption, conflict of interest, abuse of office, and money laundering.

EACC claimed that Oparanya irregularly benefited from Sh56.7 million from Kakamega County between 2013/2014 and 2021/2022 through companies linked to him.

“The recommendations of the 2nd interested party (EACC) were not put into action and as such remained just recommendations,” Justice Musyoki noted.

The petition was filed by Fredrick Mulaa, who argued that the DPP flouted prosecutorial guidelines by failing to consult the complainant.

He cited clause 3.1.2.2 of the ODPP guidelines which states:“If a prosecutor decides not to charge, reasons shall be given in writing and where appropriate the Investigating Officer and the victim shall be consulted.”

In his judgement, Justice Musyoki held that the DPP acted outside the law and therefore nullified his decsion to drop the alleged corruption charges against Oparanya.

“The DPP’s decision to review its decision to charge Oparanya did not take into consideration the interest of the public as it was not open, transparent, and accountable. I do not hesitate to hold the process as unconstitutional," the judge held