Questions to EACC as Ksh50K Bribery Evidence Goes Missing

Pressure is mounting on the Office of the Director of Public Prosecutions (ODPP) to withdraw a bribery case after the Ethics and Anti-Corruption Commission (EACC) admitted that key cash evidence in the case disappeared mysteriously, effectively compromising the case.
In a letter to the ODPP dated August 8, Mogare Oira, the EACC’s Upper Eastern Regional Manager formally recommended that the prosecution reconsider proceeding with an anti-graft case against a judicial officer in Chuka.
According to the EACC official, there were concerns about the integrity of evidence handling, making it difficult to proceed with the case.
The case involves a court officer who was charged with two counts of bribery, including requesting and receiving a benefit under section 6(1)(a) of the Bribery Act, No. 47 of 2016. Five prosecution witnesses have since testified, according to EACC.
There was, however, a twist in the case, as the fifth witness was stood down due to the unavailability of the cash exhibit, which forms a central part of the prosecution’s evidence.
During trial proceedings, the money which was allegedly used in the bribery transaction could not be located.
EACC acknowledged that the chain of custody for the missing cash exhibit was compromised, raising serious procedural questions.
“Due to discrepancies in regard to physical possession of the exhibit evidence in this case, the integrity and credibility of the chain of custody record is affected and will likely face legal challenges by the accused person in court,” a letter seen byKenyans.co.kestates.
As a result, the commission has advised the ODPP to reconsider withdrawing the case altogether, since, as it stands, the case will collapse in court in a situation which could paint the prosecution in a bad light.
At the time of publication of this article, the ODPP is yet to respond to EACC’s request.
Under Section 87(a) of the Criminal Procedure Code (CPC), a public prosecutor can withdraw a case at any stage before judgment is delivered with the permission of the court.
The act specifically states that “In a trial before a subordinate court, a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person.”
Some of the circumstances that may warrant the withdrawal of a case include missing exhibits, insufficient evidence, unavailability of witnesses, the existence of a plea bargain, or when public interest considerations are involved.