Director of Public Prosecutions v Mutua & another (Anti-Corruption and Economic Crimes Case E027 of 2024) [2025] KEMC 197 (KLR)

The DPP reviewed the case and concluded the 2nd Accused was charged merely for rendering a professional opinion which was not binding on the KNTC Accounting Officer, based on an Evaluation Committee report whose members were not charged, and with no evidence of bad faith, improper influence or personal benefit. The court held the outcome of that review constituted precise, tangible, cogent, compelling and verifiable reasons capable of repudiating the original decision to charge, and declined to pronounce conclusively on the evidence given the presumption of innocence.

Applying the principles that an accused must be able to demand recall of witnesses where a post-testimony amendment imports new issues, and that an application must be refused if it would offend fair trial rights, the court noted only six of thirty-three witnesses had testified over approximately one year and one month, so the amendment - which merely adjusts the statement of the offence - would not necessitate recall or exacerbate delay.

Relying on the Supreme Court in Konchellah v Sunkuli and earlier authority, the court held that deeming an application unopposed does not relieve it of the duty to examine the application against the facts, evidence and law, and to identify points of law such as jurisdictional impediments that might render it a non-starter.

Since no objection was raised to the prosecutor's authority and Article 157(9) permits exercise of the DPP's powers by subordinate officers, the rebuttable presumption of regularity applied, as recognized in the Taitumu case.