By Dorothy Musyoka
Malindi Chief Anti-Corruption Magistrate Hon. James Mwaniki has allowed the Director of Public Prosecutions (DPP) to withdraw the ongoing Ksh 8.5 billion corruption case against former Cabinet Secretary for the Ministry of Tourism, Najib Mohammed Balala, and his Principal Secretary, Leah Adda Gwiyo.
The Ethics and Anti-Corruption Commission (EACC) opposed the DPP’s bid to withdraw the case, arguing that it was against public interest and a setback in the fight against corruption.
The Anti-Corruption Magistrate 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,” explained EACC.
However, the court 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 the 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 followed the DPP’s independent review of the file, which concurred with the EACC that there was sufficient evidence to charge the suspects with the following offences:
- Wilful 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 EACC’s investigations revealed that the Cabinet had approved the construction of Utalii College in Vipingo at a cost of KES 1.95 billion, but the project cost was later inflated by ministry officials to KES 10.4 billion against the approved cost.
Further investigations established that the accused persons facilitated the irregular payment of KES 8.5 billion by the Ministry of Tourism, out of which KES 4 billion was fraudulently paid to Baseline Architects Limited for consultancy services in the construction of the college.
During a meeting of the Management Board of Ronald Ngala Utalii College, attended by 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 KES 4 billion.
The unfortunate withdrawal of this case by the DPP came on the day the matter was scheduled for a mention to fix a hearing date.