Court rejects ODPP's request to withdraw fraud case against ex-Nairobi County employee

The Anti-Corruption Court in Nairobi has denied a request from the Office of the Director of Public Prosecutions (ODPP) to withdraw a case against a former Nairobi county employee accused of forging academic documents to secure employment, among other offences.

Chief Magistrate C.N. Ondieki however dismissed the request, filed on October 28, on grounds that the ODPP had failed to provide sufficient justification for the application, which had been contested by the Ethics and Anti-Corruption Commission (EACC).

Gabriel Bukachi Chapia is charged with 16 counts, including forgery, uttering false documents, providing false information to public entities and EACC, giving false information to public officials and fraudulent acquisition of public property.

He is accused of using both his forged Bachelor's and Master’s degree certificates to secure senior-level positions in three public institutions: as ICT Manager at Moi Teaching and Referral Hospital in 2009, ICT Manager at the Kenya Investment Authority in 2010, and Ward Administrator at Nairobi City County Government in 2014, consequently earning salaries totalling to Ksh.9,790,694.

In the application, contested by EACC, the ODPP cited a request from the accused to review the decision to charge him.

"It is averred that the Applicant (ODPP) received a request from the 1st Respondent (Chapia) seeking review of the decision to charge him and upon review of the file, guided by Article 157 (6) & (11) of the Constitution and sections 4 and 5 of the Office of the Director of Public Prosecutions Act and in the interest of justice, public interest and fair administration of justice, the DPP formed an opinion that the charges against the 1st Respondent should be withdrawn under section 87 (a) of the CPC," official court documents read.  

"In the said Supporting Affidavit, the Applicant has rehashed the substance of the Motion and exhibited several exhibits to buttress the Application. It is deposed that upon review of the evidence viz-à-viz the said letter, the DPP reached the decision that it was not tenable to proceed with the case against the 1st Respondent without occasioning injustice, since pursuing further investigations while the matter is still ongoing in Court would be contrary to the tenets of fair trial as provided for under article 50 of the Constitution."

EACC, in an affidavit filed in court on Monday, November 4, 2024, however urged the Court to dismiss the DPP’s move terming it arbitrary, capricious, abuse of prosecutorial power and a complete disregard of public interest.

EACC further contended that the withdrawal application was made in bad faith, highlighting that prior to granting consent to prosecute in 2020, the ODPP had independently reviewed the investigation file and agreed with the anti-graft agency that there was sufficient and compelling evidence to prosecute the accused.

Additionally, the EACC noted that the ODPP had demonstrated consistency by presenting 14 out of 15 witnesses over the years, only to abruptly reverse its position when only one witness remained to conclude the case.

Chief Magistrate C.N. Ondieki however dismissed the request noting that it failed to provide adequate justification for the application.

"This Application has failed to surmount the threshold for withdrawal from prosecuting the Accused, and this Court consequently declines to grant the Application to withdraw under section 87(a) of the CPC," Ondieki ruled.