Kenyan Court Upholds Prosecutors' Immunity in Sh63bn Dams Case

The High Court of Kenya has dismissed a petition by four lobbies seeking to lift the immunity of two prosecutors involved in the Sh63 billion Arror and Kimwarer dams scandal. The petition was filed by Transparency International, Katiba Institute, Kenya Human Rights Commission, and Africa Centre for Open Governance. They sought to hold the prosecutors personally liable should former Treasury Cabinet Secretary Henry Rotich and other acquitted suspects sue the State for malicious prosecution.

The court ruled that there was no evidence the prosecutors acted unlawfully, negligently, or in bad faith. Justice Chacha Mwita, now a Court of Appeal judge, stated that the petitioners failed to demonstrate that Geoffrey Obiri and Oliver Mureithi deliberately derailed the prosecution or abused their powers. The prosecutors had explained that circumstances, including the withdrawal of key witnesses and the absence of a substantive Director of Public Prosecutions, forced them to seek adjournments.

The case relates to the acquittal of Mr Rotich and eight others on December 14, 2023, after the prosecution failed to present 41 witnesses in the trial. Trial magistrate Eunice Nyutu raised concerns about the conduct of the prosecution and called for accountability over the handling of the case. The four lobbies argued that the prosecutors had violated the Constitution through reckless dereliction of duty, exposing taxpayers to possible compensation claims.

However, Justice Mwita said the petitioners failed to establish that the prosecutors deliberately withheld witnesses, ignored available evidence, or made decisions that amounted to dereliction of duty. The prosecutors told the court that witnesses had recanted their statements or declined to testify, and that the absence of a substantive DPP affected the trial. They maintained that their requests for adjournments were intended to allow an independent review of the prosecution file.

The court noted that Section 15 of the Office of the Director of Public Prosecutions Act protects officers from personal liability for actions undertaken in good faith while performing their official duties. Justice Mwita quoted a Supreme Court decision, stating that the immunity was intended to safeguard independent decision-making by protecting prosecutors from the fear of personal liability over decisions made in the course of their work.

The judge further explained that the protection shields institutions from interference and helps preserve public confidence in their independence, accountability, and integrity. The groups had argued that lifting the immunity would ensure prosecutors were not above the law and would prevent taxpayers from shouldering compensation claims arising from alleged misconduct.

The court's decision upholds the immunity of the prosecutors, citing the need to protect independent decision-making and preserve public confidence in institutions. The petitioners had sought to limit prosecutorial immunity, arguing that it would serve a symbolic function and show that prosecutors are not entirely above the law. However, the court ruled that there was no evidence to support the allegations against the prosecutors.

Key points

• The Kenyan High Court has upheld the immunity of two prosecutors involved in the Sh63 billion Arror and Kimwarer dams scandal.
• The court ruled that there was no evidence the prosecutors acted unlawfully, negligently, or in bad faith.
• The immunity of prosecutors is protected under Section 15 of the Office of the Director of Public Prosecutions Act.