The Malindi Magistrate Court on Wednesday, July 31 allowed the Director of Public Prosecutions (DPP) to withdraw the ongoing KSh8.5 billion corruption case facing former Cabinet Secretary, Ministry of Tourism Mr. Najib Mohammed Balala and his Principal Secretary Ms. Leah Adda Gwiyo.
EACC opposed the DPP’s bid to withdraw the case, arguing that it is against public interest and a drawback in the fight against corruption. However, Magistrate James Mwaniki declined to admit an affidavit by the EACC Investigator opposing the withdrawal.
In his ruling, the magistrate termed the ground cited by DPP in seeking the withdrawal as shallow and that it was not sufficiently demonstrated to the Court why it would be difficult for the case to continue.
The court, however, discharged the accused persons and ruled that any future decision to charge them afresh on the same facts would be an abuse of the court process.
Former CS Balala and his co-accused were arrested by EACC on 22nd December, 2023 and charged over alleged procurement fraud and theft of public funds in the construction of the Coast Branch of the Kenya Utalii College (renamed Ronald Ngala Utalii College) in Kilifi County.
The arrest and arraignment came after the DPP, upon independent review of the file, concurred with EACC that there was sufficient evidence to charge the suspects with the following offences;
- Willful failure to comply with the laws relating to procurement contrary to Section 45(2)(b) as read with 48(1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.
- Unlawful acquisition of Public Property contrary to Section 45(1)(a) as read with 48(1) of the Anti-Corruption and Economic Crimes Act, 2003.
- Abuse of office Contrary to Section 46, as read with Section 48(1), of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.
“The Commission’s investigations established that the Cabinet approved the construction of Utalii College in Vipingo at a cost of KSh1.95 billion but the project cost was later inflated by Ministry Officials to KSh10.4 Billion against the approved cost,” EACC says.
Investigations, the anti-graft agency says, further established that the accused persons facilitated irregular payment of KSh8.5 billion by the Ministry of Tourism, out of which KSh4 billion was fraudulently paid to Baseline Architects Limited for consultancy services in the construction of the college.
“In a meeting of the Management Board of Ronald Ngala Utalii College attended by the Cabinet Secretary Najib Balala and Principal Secretary Leah Gwiyo, the Board dismissed construction designs and plans done by the Ministry of Public Works and resolved to engage private consultants namely Baseline Consortium to develop new designs and supervise the main contractor, at an exaggerated cost of KSh4 billion,” the EACC claims.
EACC says it is unfortunate that the withdrawal of the case by the DPP came on the day the matter was scheduled for a mention to fix a hearing date.
“With these kinds of actions, our work is totally undermined!” EACC Chairperson Bishop David Oginde reacted to the news of the case’s withdrawal.
