Court allows DPP to withdraw Sh7.4b graft case against DP Gachagua

The anti-corruption court has allowed an application to withdraw charges against Deputy President Rigathi Gachagua.

Senior Principal Victor Wakumile on Thursday ruled on an application by the Director of Public Prosecution (DPP) Noordin Haji to withdraw the Sh7.4b graft case against Deputy President Rigathi Gachagua and nine others.

"There being no objection to the substantive application by the prosecution to have the matter withdrawn under section 87A of the Criminal Procedure Code, the application is hereby granted," said Wakumile.

On Wednesday, the DPP told Magistrate Victor Wakumile during the hearing of the case that his decision to withdraw the case was arrived at after the Directorate of Criminal Investigations (DCI) failed to provide full disclosure of evidence implicating the DP and his co-accused in the corruption charges.

"The accused persons are hereby warned and informed that they may be re-arrested in the future under the same or similar charges," said Wakumile.

The DPP highlighted a lack of evidence in his application and blamed the DCI for the failure to complete investigations.

Senior Counsel Kioko Kilukumi who represented Gachagua noted his [DP's] arrest was politically motivated calling for the charges to be dropped.

"Without completing the investigations the first accused [Gachagua] was arrested on Friday, July 23, 2021, at 3 am in Mathira, Nyeri County. Why would a police officer be in anybody's residence at 3 am?" Kilukumi posed.

"After the arrest, Gachagua was subjected to intense humiliation, driven at neck-break speed from Nyeri to DCI headquarters. He was at DCI at 9 am but was not presented in court until 26 July 2021," he added.

Kilukumi submitted the treatment accorded to Gachagua by the police officer was a clear misuse of power.

"We are submitting, that was an extra-judicial punishment. There was no reason to detain Gachagua from Friday to Monday," he said.

The lawyer's remarks come after the DCI lead investigator petitioned the anti-graft court to dismiss charges against Gachagua.

Obadiah Kuria claimed in a sworn affidavit the immediate former DCI Director Goerge Kinoti instructed him to fix Gachagua without having conducted thorough investigations.

Kuria claimed there were loose ends in the multi-million billion case and proceeding with it would be prejudicial.

While delivering the ruling at Milimani Law Courts, Senior Principal Magistrate Wakumile was quick to make recommendations on similar cases.

"However, as suggested by counsel for accused number three, I believe it is important for courts of law to make recommendations which might improve the criminal justice system based on real-time observations. As courts of law, we are no longer passive arbitrators of anything and everything that is presented to us for arbitration."

"Never in my view should a judicial system be used as a stop-gap measure or even a doormat. There is need to respect institutions. Recommendations are necessary at whatever level; more so when a criminal process seems to overtly offend Article 50(2) of the Constitution of Kenya which provides that every accused person has a right to a fair trial." said Wakumile.