Director of Public Prosecutions Noordin Haji and the Directorate of Criminal Investigations (DCI) yesterday differed in court over the prosecution of Kenya Ports Authority managing director Daniel Manduku. 

As a result of the differences between the two senior officials, Manduku and the Kenya Revenue Authority (KRA) Commissioner for Customs Kevin Safari, walked away scot-free after the court discharged them unconditionally.

Their release came after it emerged that the DPP had not recommended their prosecution, while the DCI insisted the two should take plea.

Manduku and Safari, who were presented before Senior Principal Magistrate Kennedy Cheruiyot at mid-day yesterday, after spending hours at the court cells, caused confusion in court as the magistrate said he had no file record of the proceedings because no charge had been registered against the two.

When asked why the two were in court, an official from the DPP’s office said he was surprised to see them presented before the magistrate, because the officer in charge of prosecutions at Milimani Law Courts, Joseph Riungu, had written to the DCI, instructing that the suspects be released on police bond or cash bail, pending a review of their file.

Police file

“We wonder why the two are in court, l don’t have a police file nor instructions from the DPP that the two are being charged,” said the prosecutor.

However, lawyers for Manduku and Safari, led by newly-elected Law Society of Kenya (LSK) president Nelson Havi and Danstan Omari, told the court that there appeared to be a misunderstanding between the office of the DPP and the DCI, which must be sorted out. Meanwhile, they asked that the two be allowed to go home.   

“Since the DPP and DCI are not on the same page over the prosecution of the two and are fighting each other let these citizens be released as what is unfolding before this court today has massive implications on the roles of the two entities,” said Omari.  

The magistrate adjourned the matter for five minutes and asked the parties to consult and advise the court.  

When court resumed, investigating officer Moses Gituathi Njoroge said he had brought Manduku and Safari with a charge sheet and police file and was ready to present the same to court so that the two could take plea, but added that he did not know why the case was not registered by the prosecution.

According to Njoroge, police had taken the file to the prosecutor’s office and expected the case to be filed. 

However, the magistrate said Njoroge could not address him directly but through the DPP who is the police representative in court.

There was no court file to record details of what the parties were telling the court and magistrate said he could not write anything.

Havi informed the court that Manduku was arrested on Monday and detained at Kamukunji police station in Nairobi even though there was a court order from a Mombasa court stopping his arrest.

He said the two officials had been held incommunicado and none of their family members or lawyers could access them even though Manduku had paid Sh500,000 anti-anticipatory bail granted by Justice Eric Ogolla of the High Court in Mombasa.

“If the DPP and the DCI are not ready to prosecute the two suspects we will not interfere but give them time to put their house in order. But in the meantime we should be allowed to leave with the two,” said Havi.

The lawyer added that since the two were escorted to court at 7.30am yesterday, police had been taking them in circles and asked the court to intervene.

The magistrate noted that “it’s not fair to continue keeping Manduku and Safari in the court cells because there is no charge sheet and they are not accused persons as there is no charge”.

Charge sheet

“Before anyone is arraigned in court a charge sheet or a miscellaneous application has to be produced in court with the suspect, but in this case the suspects have been brought in court and there is no court file or a prosecution file before court,” said the magistrate.

He added that the law does not allow the court to compel the DCI or the DPP to institute charges against a suspect.

Manduku and Safari were expected to be the charged with several charges related to alleged fraud at the Kenya Ports Authority over award of tenders for the construction of cargo storage facilities at the Nairobi Inland Container Depot (ICD).