A Kenyan court has permitted the withdrawal of a high-profile corruption case involving former Tourism Minister Najib Balala and 16 others, linked to an alleged KES 8.5 billion procurement fraud in the construction of a state tourism college, raising questions about the country’s anti-corruption efforts.
Chief Magistrate James Mwaniki of the Malindi Anti-Corruption Court ruled on Wednesday to allow the Director of Public Prosecutions (DPP) to discontinue the proceedings, despite vehement opposition from Kenya’s Ethics and Anti-Corruption Commission (EACC).
The case, which centred on the construction of the Coast Branch of Kenya Utalii College (renamed Ronald Ngala Utalii College) in Kilifi County, had accused Balala and his co-defendants of inflating the project’s cost from an initially approved Kes 1.95 billion to Kes 10.4 billion.
In his ruling, Magistrate Mwaniki criticised the DPP’s grounds for withdrawal as “shallow”, stating there was insufficient demonstration of why the case could not continue. “The ground given by the ODPP in the application herein was shallow. There was no demonstration by the ODPP on what may have made it difficult for the investigators to undertake thorough and conclusive investigations,” Mwaniki said.
However, he ultimately granted the application, citing the DPP’s constitutional mandate: “Whereas the ODPP has the exclusive mandate to institute a criminal proceeding, under Article 157(8) of the Constitution and section 87(a) of the Criminal Procedure Code, it may not discontinue it without the permission of the court.”
The magistrate warned that any future attempt to recharge the accused on the same facts “may itself easily be interpreted as or may amount to an abuse of the court process”. He added, “It’s not right, and the court is emphatic that this habit appears to be gaining traction with the ODPP that accused persons are arraigned in court as investigations continue.”
This development marks a significant setback in Kenya’s anti-corruption efforts, according to the EACC. In a statement, the commission said: “EACC opposed the DPP’s bid to withdraw the case, which is against public interest and a drawback in the fight against corruption.”
The EACC’s investigations had alleged that Mr Balala and his co-accused facilitated irregular payments of KES 8.5 billion, of which KES 4 billion was reportedly paid fraudulently to Baseline Architects Limited for consultancy services. The commission stated that this payment was approved in a meeting of the Management Board of Ronald Ngala Utalii College, attended by Mr Balala and Principal Secretary Leah Gwiyo.
Balala, Ms Gwiyo, and 15 others were charged in December 2023 with offences including willful failure to comply with procurement laws, unlawful acquisition of public property, and abuse of office. The arrests came after the DPP, upon independent review of the file, had initially concurred with the EACC that there was sufficient evidence to charge the suspects.
The case’s withdrawal came on the day it was scheduled for a hearing date to be set, raising questions about the timing and implications for Kenya’s anti-corruption campaign. The EACC noted in its statement that the Anti-Corruption Magistrate declined to admit an Affidavit by the EACC Investigator opposing the withdrawal.
