Former Migori Governor Okoth Obado has secured a major legal victory after a Kenyan court upheld a plea agreement that led to the withdrawal of corruption charges against him, finding that the negotiated settlement did not offend public interest or amount to an abuse of the legal process.
In its ruling, the court said the decision by the Director of Public Prosecutions (DPP) to pursue withdrawal under Section 137A(1)(b) of the Criminal Procedure Code was justified after the accused persons forfeited properties worth KSh235 million and two motor vehicles in separate civil asset recovery suits.
According to the court, the forfeited assets were “more than three times the value” of the KSh73.5 million allegedly linked to the charges before the criminal court. The judge noted that the settlement agreement reached in High Court Asset Recovery Cases No. 32 of 2018 and No. 10 of 2022 had already achieved the same objective that prosecutors sought in the criminal proceedings.
“The civil forfeiture achieved the same goal which would have been achieved by the criminal forfeiture,” the court held.
The DPP argued that repeating the same forfeiture terms in the plea agreement would have risked offending the principle of double jeopardy because the assets had already been surrendered through the civil settlement. The court agreed, finding that the prior civil recovery process had a “consequential effect” on the plea negotiations since both matters arose from the same set of facts.
In a significant finding, the judge rejected the argument by the Ethics and Anti-Corruption Commission (EACC) that civil and criminal recovery mechanisms are mutually exclusive.
“Where a civil forfeiture has been successfully pursued through alternative forms of dispute resolution… the forfeiture in the civil case ought to constitute one of the pivotal or cornerstone factors in determining the pathway to take in plea bargaining,” the court ruled.
The court further held that choosing withdrawal as a lawful plea bargaining option did not automatically violate public interest simply because it was unpopular.
“If an act is progressed in compatibility with the Constitution and the laws thereunder, it cannot be deemed to have offended public interest,” the judge stated.
The ruling also faulted the EACC for failing to demonstrate how the DPP allegedly abused prosecutorial powers. According to the court, the commission merely protested that it had not been adequately consulted but failed to present specific factors it wanted considered during the negotiations.
“The objection by the EACC remained merely a protest… without specific material or substance,” the judge observed.
The court ultimately found the considerations behind the Obado plea agreement “compelling,” saying the withdrawal pathway was practical, lawful and consistent with the constitutional principles governing administration of justice and public interest.
