The High Court of Kenya has ruled that the Director of Public Prosecutions' (DPP) decision to review the prosecution of former Kakamega governor Wycliffe Oparanya was irregular and unconstitutional. The court found that the DPP acted outside the law when it reconsidered the decision to charge Oparanya after receiving fresh evidence from his lawyers without referring the material to the Ethics and Anti-Corruption Commission (EACC) for further investigations.
According to the court, the DPP has the constitutional mandate to decide whether to prosecute, but its mandate in investigations begins and ends with directing the relevant investigative agency. The judge, Justice Benjamin Musyoki, stated that the DPP has no investigative powers and that the proper course would have been to direct EACC to investigate the alleged fresh evidence before making a fresh decision on whether to prosecute.
The dispute arose from investigations into allegations that Oparanya received Sh56.7 million from directors of Sabema International Limited and Sesela Resources Limited. The EACC had investigated allegations of kickbacks linked to companies awarded contracts by the Kakamega County government between the 2013/14 and 2021/22 financial years. The EACC recommended that Oparanya face charges of conspiracy to commit an offence of corruption, conflict of interest, abuse of office, and money laundering.
The DPP initially concurred with the EACC's recommendation to prosecute Oparanya but later reversed the decision after receiving representations from Oparanya's lawyers. The court found that the DPP's decision-making process breached its own 2019 Guidelines on Decision to Charge, which require consultation with the investigating officer and, where appropriate, the victim when a decision is made not to charge.
The court quashed the DPP's July 8, 2024 decision to withdraw the consent to prosecute Oparanya, who had by then been nominated and appointed Cabinet Secretary for Cooperatives, Micro, Small and Medium Enterprises Development. However, the court declined to declare Oparanya's nomination and appointment to the Cabinet unconstitutional, citing a lack of evidence to fault the appointing and vetting authorities.
The judge emphasized that the DPP's independence under Article 157 of the Constitution did not shield the office from judicial scrutiny where its processes violated the law. The court consequently found that the DPP had usurped EACC's investigative mandate and declared the DPP's July 8, 2024 decision irregular and unconstitutional.
The judgment was delivered by Justice Musyoki at the Milimani High Court in Nairobi on October 2, 2026. The court ordered each party to bear its own costs, as the matter was public-interest litigation. The ruling has significant implications for the role of the DPP in Kenya's justice system and the relationship between the prosecution and investigative agencies.
Key points
- The Kenyan High Court has ruled that the DPP's decision to review the prosecution of former Kakamega governor Wycliffe Oparanya was irregular and unconstitutional.
- The DPP acted outside the law by reconsidering the decision to charge Oparanya without referring the material to the EACC for further investigations.
- The court's ruling has significant implications for the role of the DPP in Kenya's justice system and the relationship between the prosecution and investigative agencies.
