High Court ruling revives graft case against Oparanya

Allegations of graft involving contracts worth Sh2.2 billion during his tenure as Kakamega governor have returned to haunt Cabinet Secretary Wycliffe Oparanya after the High Court quashed the decision to abandon his prosecution.

For nearly three years, the question surrounding the corruption investigation into the former ODM deputy party leader has been whether allegations that he received millions of shillings in suspected benefits from county contractors would ever be tested in a criminal court.

The dispute has also raised questions about the circumstances surrounding his appointment to the Cabinet despite the pending graft allegations.

The latest development has revived a case that appeared to have reached a dead end in July 2024, when Director of Public Prosecutions Renson Ingonga reversed an earlier decision to charge Oparanya and other suspects, citing insufficient evidence to secure a conviction.

The decision came days before President William Ruto nominated Oparanya to his Cabinet, paving the way for his appointment as Cabinet Secretary in August 2024.

The Milimani Anti-Corruption High Court declared Ingonga’s decision irregular and unconstitutional, faulting the DPP  for reviewing the prosecution decision after receiving what was described as fresh evidence from Oparanya’s lawyers without referring it to the Ethics and Anti-Corruption Commission (EACC) for further investigations.

Justice Benjamin Musyoki found that the DPP had usurped the EACC’s investigative mandate by considering fresh evidence without referring it to the commission for further investigation before reversing the decision to prosecute Oparanya and other suspects.

“It was shrouded in mystery and therefore worked against the public interest hence in violation of Article 157(11) of the Constitution,” Justice Musyoki said of the process leading to the DPP’s decision.

The judgment has reopened difficult questions about accountability, the handling of high-profile corruption investigations and the limits of prosecutorial discretion when a case involves a senior government official.

The decision has placed the spotlight on a complex trail involving contracts valued at more than Sh2.2 billion, alleged benefits of Sh56.74 million, a property in Nairobi’s Karen suburb and a dispute between two constitutional institutions over the handling of a high-profile graft investigation.

At the centre of the investigation are 60 contracts awarded to six companies by the Kakamega County Government during Oparanya’s tenure as governor between 2013 and 2022.

According to EACC investigations, payments under the contracts amounted to approximately Sh2.25 billion.

EACC investigators alleged that Oparanya received benefits totalling Sh56.74 million from directors of companies that did business with the county government.

Among the companies identified in reports on the investigation were AFBA Construction Company Limited, Western Cross Express Limited, Sabema International Limited and Sesela Resources Limited.

In its findings, the EACC alleged that companies associated with the former governor channelled kickbacks to him through proxies.

“The companies associated with the former governor had been sending kickbacks to Oparanya through his proxies,” the commission stated.

The allegations raised questions about  potential conflicts of interest in the award of public contracts and whether individuals connected to the county leadership benefited from public expenditure during the period under investigation.

The EACC also investigated a tenancy arrangement involving land belonging to Oparanya that was leased to the county government, with a building erected on the property at a reported cost of Sh9.2 million.

The commission treated the arrangement as a potential conflict of interest.

These findings formed part of a broader investigation into alleged corruption, abuse of office, money laundering and conspiracy to commit corruption. However, the allegations remain unproven in court.

Investigators also examined the acquisition of a property in Karen, Nairobi, known as Olorua Ridge Development, which was reportedly purchased for Sh89 million from the Local Authorities Pension Trust Registered Trustees.

The EACC suspected that proceeds linked to the county contracts had been used in the transaction and alleged that Tricomp Energy Company Limited was used as a vehicle to acquire the property.

EACC detectives also linked companies, including Sabema International Limited and Sesela Resources Limited, to the suspected flow of funds.

The commission’s theory was that the alleged benefits were not limited to direct payments but could also have moved through companies and transactions connected to the former governor.

In November 2023, the EACC obtained court orders preserving assets worth approximately Sh28.9 million linked to Oparanya and others suspected of benefiting from the proceeds of corruption.

In July 2024, the High Court declined a request by the Cabinet Secretary to release the preserved assets, allowing the restrictions to remain in force in accordance with the court’s orders.

The asset-preservation proceedings were separate from the petition filed by activist Fredrick Mulaa challenging the DPP’s decision to abandon the intended prosecution of the Cabinet Secretary and others.

According to court documents, investigations intensified in 2023, when the EACC obtained court orders and conducted searches at properties associated with Oparanya, including locations in Butere, Muthaiga and Karen, as part of efforts to gather evidence.

The EACC subsequently compiled its findings and, on October 12, 2023, recommended that Oparanya, his spouse, county officials, company directors and a lawyer linked to the property transaction face prosecution.

The proposed charges included conspiracy to commit corruption, conflict of interest, abuse of office and money laundering.

According to records examined during the court proceedings, the DPP initially concurred with the recommendation in December 2023.

However, the position changed after Oparanya’s lawyers sought a review of the intended prosecution.

On July 3, 2024, his legal team made representations to the Office of the Director of Public Prosecutions (ODPP).

Five days later, the prosecution agency communicated its decision to review its earlier position and close the file for lack of sufficient evidence, unless further evidence emerged to justify additional inquiry.

“In the circumstances and bearing in mind the standard of proof required in criminal cases which is proof beyond any reasonable doubt, the Director of Public Prosecutions finds that it will be an uphill task to secure a conviction in this matter,” the DPP’s letter dated July 8, 2024, stated.

The letter added that the DPP had reviewed the decision to charge the suspects and directed that the file be closed unless further evidence necessitated additional inquiry.

The decision effectively halted the intended prosecution of Oparanya and others, prompting Mulaa to file a petition challenging the manner in which the review had been conducted.

In his petition, Mulaa challenged the legality of the DPP’s July 2024 decision, arguing that Ingonga had acted unlawfully by reviewing the matter without involving the EACC, the agency that had conducted the investigations.

He also questioned whether the ODPP could consider material presented by Oparanya’s lawyers as fresh evidence and close the file without referring it to investigators for verification.

The EACC opposed the reversal, maintaining that it had recommended prosecution after investigating the allegations and had not been consulted before the decision to close the file was made.

In his judgment, Justice Musyoki made it clear that the DPP has the constitutional authority to decide whether to prosecute, but that the exercise of this power must comply with the Constitution.

The problem, the judge found, was that the DPP had considered alleged fresh evidence without first referring it to the EACC, the body that had conducted the investigation.

“Only after the 2nd Interested Party investigated the alleged fresh evidence, would the 1st Respondent be constitutionally mandated to make a decision based on the same,” the judge said.

He added: “Anything short of that would be usurping the constitutional and statutory powers of the 2nd Interested Party, a separate constitutional and independent body.”

The judge found that the review process had failed to involve the investigative agency responsible for examining the allegations.

He also faulted the lack of transparency surrounding the decision to abandon the intended prosecution.

“It was shrouded in mystery and therefore worked against the public interest hence in violation of Article 157(11) of the Constitution,” Justice Musyoki said.

Article 157(11) requires the DPP, when exercising prosecutorial powers, to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

The court consequently declared the DPP’s July 8, 2024, decision irregular, unconstitutional, null and void, and issued an order quashing it.

The judge also declared that the DPP had usurped the EACC’s investigative mandate by considering fresh evidence without referring it to the commission for further investigation.

Beyond the prosecution dispute, the case has also drawn attention to Oparanya’s appointment as Cabinet Secretary for Cooperatives and Micro, Small and Medium Enterprises Development.

Mulaa sought orders that would have affected Oparanya’s appointment, placing his suitability for public office under judicial scrutiny because of the corruption allegations.

“Oparanya lacked suitability to serve in the office because he was before the nomination and appointment, due for prosecution because the DPP had made a decision to charge him for corruption, conflict of interest, abuse of office and money laundering which decision had been communicated to the EACC but which the DPP reviewed,” Mulaa told the judge.

He added that: “The DPP’s act of reviewing its decision to charge Oparanya was whimsical and meant to sanitize him for the position he was appointed to by the president days later.”

However, Justice Musyoki declined to nullify the appointment.

The court noted that Oparanya had not been charged in court or convicted and that Parliament had vetted and approved his nomination.

The judge also found that the court had not been supplied with the relevant vetting proceedings or report to establish that the National Assembly had failed to discharge its constitutional mandate.

The court therefore found no basis to interfere with the appointment.

Attention now turns to the DPP’s office to see whether Ingonga will revive the intended prosecution of Oparanya and his co-suspects following the High Court ruling. The ruling also raises questions about whether President William Ruto will suspend or dismiss Oparanya as Cabinet Secretary.