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The repeated incidents of withdrawal of cases of high-profile individuals by the Office of the Director of Public Prosecution have aroused suspicion and left the public questioning the independence and accountability of the office.
This has been evident from several graft and serious offences committed by leaders withdrawn on account of lack of evidence.
As a result, the habit prompted Justice Nixon Sifuna to settle the law on the powers of the ODPP to withdraw or terminate cases.
"Regrettably, this practice is increasingly gaining notoriety and becoming a fashion in Kenya's prosecutors. This ruling should be a clampdown on that practice," Justice Sifuna said while ruling on a graft case in February.
He described it as "a laundry manner of prosecution practice that is steadily, undesirably and notoriously taking root in Kenya," especially in terminal withdrawals.
The case of controversy was against Kenya Pipeline Corporation Chief Engineer Josephat Kipkoech Sirma and two others facing various corruption charges.
The current head of ODPP Renson Ingonga has come to the defence of the office despite the matter being raised even in the previous regimes.
While appearing in an interview on Spice FM on April 29, Ingonga explained why the ODPP at times is forced to withdraw cases that have been dragged over years.
He explained that some of the circumstances that forced the office to declare a case lack enough evidence.
“When a matter is before the court, during the trial, you might encounter some information or some evidence from the defence that was not available at the time you were deciding to charge. At that point, you will need to go back and review and be forced to withdraw the case,” he explained.
In another circumstance, he said the witness might lose interest in the case and withdraw or in the case of the death of a witness.
He also mentioned withdrawal by the complainant; “in cases, we have complainants declare that they have no interest in the case. They have reconciled with the suspect and don't want us to proceed.”
Ingonga further said that the office might be forced to withdraw a case considering the circumstances under which a person was charged, which might change over time due to public interest or other factors.
He also listed the incident where witnesses gave contradictory evidence, which then forced the court to go back to the drawing board.
When such withdrawal happens, the public does anticipate losses resulting from the loss of time and resources in pursuing the case.
However, the DPP has said the withdrawals would rather save the taxpayers a lot of money that might have been paid to the accused for damages after they were acquitted.
“When the DPP realizes that this case will lead to an acquittal under section 210 where the court will say there was no evidence whatsoever. When such a high profile person is acquitted and they move to civil court to claim damages, then you can be sure it can be millions because of their status in the society,” he added.
He further refuted claims of the office withdrawing cases of only highly profiled individuals mentioning that there are countless number of cases withdrawn in courts all over the country daily for lack of evidence.