The High Court has declared unconstitutional and null and void the decision by the Director of Public Prosecutions (DPP) to review an earlier decision to prosecute former Kakamega governor Wycliffe Oparanya over corruption-related offences.
Justice Benjamin Musyoki ruled that although the DPP has the constitutional mandate to decide whether to prosecute, the office acted outside the law when it reconsidered the decision to charge Oparanya after receiving what it termed fresh evidence from his lawyers without referring the material to the Ethics and Anti-Corruption Commission (EACC) for further investigations.
The judge also quashed the DPP's July 8, 2024 decision to withdraw the consent to prosecute Oparanya, who had by then been nominated and appointed Cabinet Secretary for Cooperatives, Micro, Small and Medium Enterprises Development.
The ruling followed a constitutional petition filed by Fredrick Mulaa challenging the decision by the DPP to abandon the intended prosecution.
The court found that the DPP had initially concurred with EACC's recommendation that Oparanya and other suspects be prosecuted, but later reversed the decision after receiving representations from Oparanya's lawyers.
Justice Musyoki said the DPP was entitled to review its decision but had to do so within the constitutional and statutory framework governing the relationship between the prosecution and investigative agencies.
“The 1st Respondent has no investigative powers,” the judge said, holding that the DPP's mandate in investigations begins and ends with directing the relevant investigative agency.
The judge said the proper course would have been for the DPP to direct EACC to investigate the alleged fresh evidence before making a fresh decision on whether to prosecute.
“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,” Justice Musyoki said.
The court consequently found that the DPP had usurped EACC's investigative mandate.
The dispute arose from investigations into allegations that Oparanya received Sh56.7 million from directors of Sabema International Limited and Sesela Resources Limited.
EACC had investigated allegations of kickbacks linked to companies awarded contracts by the Kakamega County government between the 2013/14 and 2021/22 financial years.
EACC had recommended that Oparanya face charges of conspiracy to commit an offence of corruption, conflict of interest, abuse of office and money laundering.
The DPP initially returned the file to EACC for further investigations before later concurring with the recommendation to prosecute.
However, following a request by Oparanya's lawyers for a review, the DPP on July 8, 2024 directed that the file be closed for lack of sufficient evidence unless further evidence emerged.
The court noted that the DPP's decision stated that securing a conviction would be an “uphill task” given the required threshold of proof beyond reasonable doubt.
EACC opposed the reversal and subsequently wrote to Parliament during Oparanya's vetting, expressing reservations over his suitability for appointment as Cabinet Secretary.
Justice Musyoki said the DPP's independence under Article 157 of the Constitution did not shield the office from judicial scrutiny where its processes violated the law.
“Constitutional independence” could not be invoked to avoid accountability where an action or omission went against the Constitution, he said.
The judge further found that the DPP's decision-making process breached its own 2019 Guidelines on Decision to Charge, which require consultation with the investigating officer and, where appropriate, the victim when a decision is made not to charge.
The court found that there was no evidence that EACC had been consulted before the decision to withdraw the consent to prosecute was made.
“It is indisputable that the 1st Respondent’s letter dated 8-07-2024 was written without consulting the 2nd Interested Party,” the judge said.
Justice Musyoki, however, declined to declare Oparanya's nomination and appointment to the Cabinet unconstitutional.
The judge said the National Assembly had vetted and approved Oparanya and the court had not been given the proceedings or report from the vetting process to establish that Parliament had failed to discharge its constitutional mandate.
“The 1st Interested Party was not charged in court or convicted,” the judge said, adding that it would be unfair to condemn the appointment when the court had no basis to fault the appointing and vetting authorities.
The court also rejected Oparanya's argument that he had acquired a legitimate expectation that he would not be prosecuted after the DPP's decision.
Justice Musyoki said legitimate expectation could not arise where doing so would conflict with the Constitution or the law.
The judge dismissed other prayers seeking orders compelling EACC to publish all cases where consent to prosecute had been withdrawn and an order prohibiting the DPP from withdrawing prosecution consent based on representations by suspects without referring them to investigators.
In the final orders, the court declared the DPP's July 8, 2024 decision irregular and unconstitutional, quashed it and declared that the DPP had usurped EACC's investigative mandate.
However, the court declined to interfere with Oparanya's appointment and ordered each party to bear its own costs because the matter was public-interest litigation.
The judgment was delivered by Justice Musyoki at the Milimani High Court in Nairobi on October 2, 2026.
