The Director of Public Prosecutions (DPP) wants to drop KSh 7.6 billion fraud charges against Asian businessman Yagnesh Devani and his company, Triton Petroleum Company, in the latest attempt by the top office to exonerate corruption suspects.

• •The DPP, Renson Ingonga, presented the application to court magistrate Harrison Barasa requesting for a withdrawal of the decades-old case because key witnesses were no longer traceable.
• •Barasa ordered the DPP to file a formal application with a supporting affidavit, citing that the corruption charges were serious and could only be withdrawn after considerable reasons were outlined.
• •In the corruption case, Devani was accused of releasing 126 million litres of oil from the Kenya Pipeline Company (KPC) in 2008, contrary to an agreement with Emirates National Oil Company.

“I urge this court to withdraw the case against the accused persons as the prosecution has experienced difficulties in tracing witnesses, some of whom have since passed away,” the prosecutor said.

Devani, who was on the run in the United Kingdom, was extradited to Kenya on 23rd January this year. Later that month, the EACC requested the office of the DPP to separately charge him.

The Kenya Revenue Authority (KRA) also stated that Devani’s ‘Triton’ did not pay corporation taxes worth KSh 2 billion in the period ending December 2007. The company did not pay its penalties for storage at the Kipevu Oil Storage Facility bringing the total amount of unpaid taxes to KSh 4 billion.

The withdrawal request for the Triton fraud counts comes less than a week after the DPP’s request for withdrawal of charges in another case involving Tanathi Water bosses was approved by the court. Kenyans have firmly speculated that something sinister is going on between the country’s top prosecutor and corruption suspects, with perception that Ingonga is now the weak link in the war against corruption.

A Kitui Water Project

Renson Ingonga’s request for withdrawals of a corruption case involving nine accused persons in a Kitui Water project was permitted by a chief magistrate last week. In the corruption scandal, more than KSh 290 million was stolen.

Despite the EACC opposing the withdrawal of the case, the DPP insisted that the contentious tender for the Kinanie Leather Industrial Park Water Supply project was correctly awarded to Perma Structural Engineering Company. The EACC objections were overlooked and the magistrate declared the prosecutor’s withdrawal justified.

When the case against the county water bosses began in July this year, the DPP had approved prosecution claiming there was sufficient evidence to prove procurement irregularities. It later emerged that the DPP had allowed the accused persons to review the evidence they had against them.

The Balala case

The DPP in August this year applied for a withdrawal of a KSh 8.5 billion graft case involving former Tourism Cabinet Secretary Najib Balala. The EACC once again opposed the withdrawal but the DPP claimed there were gaps in the evidence.

The prosecutor even accused the EACC for failing to submit key documents that could be fruitful to the charges. The office further claimed that pursuing the case further with lapses of proof was an abuse to the court process and detrimental to the rights of the accused.

Initially, the EACC had been accused of providing weak evidence against corruption suspects. Every time a grand theft case was dropped, the DPP points a finger at the EACC for not being meticulous in its investigations. Billions of shillings lost in many of these cases are never recovered.

Former Governors

Several former governors charged in court over mega corruption have ironically had the DPP as their unintended ally. In the KSh 83 million case against former Samburu governor Moses Lenolkulal, the DPP sought withdrawal but magistrate Thomas Nzioki rejected the application.

In the embezzlement case against former Nairobi governor Mike Sonko, the DPP botched the case leading to its eventual collapse by not pursuing it as intended. When the EACC recommended that former Kakamega governor Wycliffe Oparanya be charged in court over corruption, the DPP allegedly sought closure of the file due to insufficient evidence. 

Oparanya is currently serving as Cabinet Secretary for Co-operatives and it is unclear if the corruption charges by EACC that loomed over him since December last year will be pursued henceforth.

A Disturbing Trend

Earlier this year, Justice Nixon Sifuna condemned the DPP’s office for its affinity to withdrawing cases of public interest. He regarded the DPP’s claim that evidence was lacking as ‘unorthodox’ , reminding the prosecutors that the decision to review evidence and determine its substantiality rested with the court.

“The DPP having supposedly based his decision to prosecute on findings and evidence from prior investigations, is bound by that decision and cannot with caprice or whim suddenly just disown his decision and drop charges,” Justice Sifuna said.

The ruling by Sifuna had sought to ground Magistrate Victor Wakumile’s decision to reject the DPP’s withdrawal request for a corruption case involving a KPC Chief Engineer and two other individuals. It was a declaration that the DPP’s intent and power to withdraw cases was not absolute or exigent.

This alarming trend of withdrawing corruption cases of high-profile politicians continues to erode the trust of Kenyans in these institutions. The DPP’s fervor in abandoning graft cases creates unhealthy skepticism and Kenyans can easily conclude that the law is only a baton for the poor and powerless.

As these withdrawals persist, it remains that despite the theft of billions of shillings from public coffers and other properties, little to no viable conviction of high-level corruption cases have been secured. The latest reversal of the conviction imposed on Sirisia MP, John Waluke, in the NCPB scandal continues to deepen the pessimism.

A New Fund

The DPP’s office has requested the establishment of a Public Prosecutions Fund that will receive proceeds of crime and facilitate the recovery of stolen assets. In a series of meetings with the National Treasury later this month, the ODPP will provide insights that will enable the drafting of the Public Finance Management Bill (Public Prosecutions Fund) Regulations, 2024.

The DPP says that the creation of this fund will accelerate its efforts in fighting graft and support the country’s criminal justice system. The forfeited assets of corrupt individuals will be in custody of the investigating agency thus centralizing case management.

And yet these and many other talking points of the DPP, and its superficial claims of being at the forefront of fighting corruption, now seem laughable to many Kenyans. It is clear that the office of the DPP has a magnanimous task of restoring the citizens’ trust by reorganizing itself into a veritable prosecutorial agency that effectively manages corruption cases and pursues them to the end.

For while it is important for the EACC to heighten its investigatory abilities, a weak and compromised prosecutorial office – that unrelentingly abandons cases midway and denounces evidence in a file of cases – lops off any progress in the war against corruption.