The war on corruption has seen its latest unraveling in court after the High Court overturned the conviction of former Samburu governor Moses Lenolkulal, freeing him of all corruption charges and exposing the fragile prosecutorial spine of the country's justice system.
- •The Ethics and Anti-Corruption Commission (EACC) accused Lenolkulal of using a company linked to him, Oryx Service Station, to siphon county funds.
- •The Office of the Director of Public Prosecutions (ODPP) claimed his administration irregularly paid out KSh 84.7 million for fuel supplies.
- •However, the High Court found no evidence of loss to the county, no proof of personal benefit, and no link between the governor and the business during the period in question.
“The convictions and sentences meted against the appellants in Milimani Chief Magistrate’s Anti-Corruption case number 3 of 2019 are set aside and consequently the appellants Moses Kasaine Lenonkulal, Hesbon Jack Wachira Ndathi and Bernard Ltarasi Lesurmat are hereby acquitted of the offences they were charged with in the said case,” Justice Benjamin Musyoki.
The court also set aside all convictions, fines, and disqualifications from office, affirming that the decision by the lower Anti-Corruption Court had improperly shifted the burden of proof onto the defendants.
Justice Musyoki noted that an accused is not required to prove innocence; rather, the prosecution must establish guilt beyond a reasonable doubt. By rejecting this principle, the trial court had effectively undermined a cornerstone of criminal law.
Lenolkulal denied any wrongdoing, arguing that he had leased out Oryx Service Station to businessman Hesbon Ndathi in May 2013, a month after assuming office as governor.
He produced a written lease and management agreement showing he handed over the business operations and only received rent. The former governor’s lawyers argued that once he ceased to operate the business, he had no role in its dealings with the county.
The EACC countered that the lease was a façade meant to conceal his continuing control. Investigators told the court that Oryx’s registration still bore his name and that payments to the business should have raised a red flag.
They relied on bank transactions, IFMIS records, and payment vouchers to argue that the governor remained the true owner and beneficiary.
The court faulted the prosecution’s accounting of the KSh 84.7 million figure, which it said represented gross payments for fuel actually delivered to the county, not money lost. There was no audit report or witness confirming that Samburu County paid for non-existent supplies or suffered any loss.
The businessman, Hesbon Ndathi, maintained that he ran Oryx independently after 2013, obtaining bank loans and paying suppliers. He denied being a proxy of the former governor and producing statements to show that money from the county went to legitimate business expenses. The court accepted his defence, noting that the prosecution never established that he shared profits with the governor.
The county officer, Bernard Lesurmat, had been convicted for approving Oryx payments, allegedly abusing his office. On appeal, the judge ruled that Lesurmat joined the county in 2015, long after Oryx’s prequalification, and there was no evidence he knowingly acted to benefit the governor.
Another Blow For EACC
Lenolkulal’s acquittal follows another November court ruling where former Nairobi governor Evans Kidero was cleared of KSh 213 million graft charges. In that case, prosecutors could not prove that any money vanished from City Hall accounts or that Kidero personally profited from county payments.
Two months earlier, the ODPP struck a plea bargain with former Migori governor Okoth Obado, dropping criminal charges in exchange for the forfeiture of KSh 235 million in assets including eight parcels of land, two SUVs, and multiple properties. The ODPP called it a “strategic recovery” but the EACC called it a unilateral shortcut and claimed it had not been consulted in the agreement.
The Fragile Baton of Prosecution
These courtroom losses are not isolated accidents but are a natural consequence of a prosecutorial office that has, over time, hollowed itself out.
When I examined the trend last year, it was already apparent that the ODPP under Renson Ingonga had become a reluctant participant in the country's corruption trials.
In case after case, from the KSh 7.6 billion Triton oil fraud, the Tanathi Water project, the Najib Balala file; the DPP sought withdrawals, citing missing witnesses, gaps in evidence, or investigative lapses. Even when the EACC objected, the courts often accepted the ODPP’s requests.
Even Justice Nixon Sifuna saw a problematic pattern and issued a caustic rebuke of the office. He said that a prosecutor “cannot with caprice or whim suddenly just disown his decision and drop charges.”
This institutional weakness now defines the state’s response to corruption. The ODPP routinely blames the EACC for poor investigations, while the EACC accuses the prosecutors of sabotage. As the grasshoppers squabble over who has abdicated responsibility, Kenya's devolution experiment continues to face a sour future as corruption intensifies.
Let's Face it…It is an Institutional mess
The EACC’s style of investigation is largely theatrical and media-friendly but barely translates into any courtroom victories. The agency builds narratives but forgets to stack up irrefutable evidence.
Although the agency is always lamenting about the lack of political goodwill and support, it is not difficult to see that it is only good at quantifying outrage and handing over to prosecutors may cases thin on proof.
The result is a predictable courtroom rhythm: months of adjournments, half-hearted witnesses, forensic reports that crumble under serious cross-examination. The judges have little choice but to acquit the accused but it remains undeniable that money is lost and shady dealings go on in the counties, according to yearly reports from the Auditor-General.
A Rare Exception
While most governors accused of corruption have walked free on technicalities, Ferdinand Waititu remains the rare exception. Convicted in February this year over a KSh 588 million road contract scheme, the former Kiambu governor was sentenced to 12 years in prison or a KSh 52.7 million fine for conflict of interest and dealing with suspect property.
The Anti-Corruption Court found that his family-linked company, Testimony Enterprises, irregularly secured county tenders, and that funds were routed through associates to enrich him and his wife.
His co-accused, including the firm’s directors and a senior county engineer, were also handed multi-year sentences and fines running into hundreds of millions. The ruling, rare in its decisiveness, temporarily revived confidence in the Ethics and Anti-Corruption Commission, which hailed it as proof that accountability within devolution was still possible.
Yet even this conviction now sits on a procedural knife’s edge. Waititu appealed the ruling even as he remains in custody after the High Court declined to ease his KSh 53 million bond.
The former governor confronts a rare reality in Kenya’s graft landscape but until he has exhausted all his avenues for appeal, the anti-graft agency cannot be certain of its victory. In the Lenolkulal case, the EACC perhaps believed it had nailed him at the Milimani Anti-Corruption Court only for the entire case to be nullified after a high court appeal.
The Disappearing Frontier of Accountability
Devolution was meant to bring the benefits of government closer to the people it was meant to serve. Instead, it created 47 miniature treasuries, each ripe for abuse. In the decade since its birth, the EACC and ODPP have charged nearly half of Kenya’s governors with corruption but securing convictions has been an uphill task.
The state’s fallback strategy has been “asset recovery”, a polite euphemism for compromise. When conviction proves impossible, the ODPP negotiates forfeitures and calls them victories.
A recent Auditor-General report paints a stark picture of mismanagement and waste across county governments, with billions of shillings locked in stalled or poorly executed projects.
Kakamega leads with 10 unfinished projects worth KSh7.24 billion, while Machakos, Kitui, Samburu, Uasin Gishu, Bomet, and several other counties report similarly stalled initiatives spanning hospitals, administrative offices, and governor’s residences.
In many cases, substantial payments have already been made, yet work remains incomplete, raising serious questions about accountability, procurement oversight, and the effective use of public funds.
Until the state learns to prosecute with the same energy it performs outrage, the country’s graft war will continue being a choreography of futility that will wither in the courts and collective public memory.
