DPP withdraws Sh3.4 billion graft case against former Tourism CS Balala

Former Tourism and Wildlife Cabinet Secretary Najib Balala. [Standard, File]

It is a relief for former Tourism and Wildlife Cabinet Secretary Najib Balala after the anti-corruption court terminated the Sh3.4 billion corruption case against him and 16 others.
Despite strong opposition from the Ethics and Anti-Corruption Commission (EACC, the court allowed the Director of Public Prosecution (DPP) to withdraw the case against Balala and 16 other accused persons.

Malindi Chief Magistrate James Mwaniki said the case was built on shallow grounds. He ordered that the accused should not be charged again using the same evidence terming such an act 'an abuse of the court process."

"There is always a reasonable expectation, sometimes akin to an obligation on the part of the ODPP that it will not arraign anyone in court unless it's somewhat certain that the investigation would not only sustain a charge but also a high threshold or likelihood of a conviction," said Mwaniki.

He added: "It is not right, and the court is emphatic that this habit appears to be gaining traction within the ODPP that accused persons are arraigned in court as the investigation continues."

He said there was a need for finality in the legal process to stop the ODPP from undertaking "what I call round-about or circus proceedings." "The phrase litigation must end," said Mwaniki in his criticism of investigators. 

In a letter dated July 31, 2024, the ODPP directed the discontinuation of the proceedings as investigations had not been completed and full disclosure made.

The ODPP argued that the period it might take to finalize the investigations was uncertain and asked for their discharge. Yesterday, the EACC criticised the verdict
Balala and the others accused were charged in December last year with graft in connection with the tender for the construction of the Sh10.4 billion Ronald Ngala Utalii College (RNUC) in Kilifi County.

The other accused persons included former Principal Secretary, Leah Gwiyo. They allegedly paid a consultancy firm Sh4 billion for services that were not delivered.
It was alleged that the two engaged Baseline Architects Ltd, Ujenzi Consultants, Armitech Consulting Engineering, and Westconsult Consulting Engineering, against the advice of the Cabinet.

The service led to irregular payment of over Sh3.4 billion to the said firms concerning the request for proposal number CIDLT/003/2011-2012 for consultancy services, according to the charge sheet.

Balala and Gwiyo pleaded not guilty. RNUC, whose construction started in 2010, has been under multiple probes by state agencies and National Assembly and Senate committees. 

Delivering the ruling virtually, Malindi Chief Magistrate James Mwaniki allowed the application by the ODPP to have the case withdrawn.

The magistrate ordered the accused persons to be discharged under Section 87(a) of the Criminal Code.

“Any cash bail deposited in court be released to the depositors and any security documents deposited in court be released back to the sureties and the sureties be and are hereby relieved of their obligations,” ordered the magistrate.

He however reiterated that withdrawal of the charges as sought by the ODPP cannot be said to amount to an abuse of court process.

Mwaniki said whereas the withdrawal amounts to a discharge, any decision by the ODPP to institute subsequent proceedings against the accused persons or any of them on account of the same facts may itself easily be interpreted as or may amount to an abuse of the court process for the reasons stated elsewhere above.