The Director of Criminal Investigations has no power to institute criminal proceedings unless the DPP gives consent, the court has ruled.
This comes amid the supremacy battle that has been raging on between the Director of Criminal Investigations George Kinoti and DPP Noordin Haji.
Justice George Odunga on Thursday ruled that only the DPP has powers to charge and prosecute.
This is after National Water Harvesting Authority boss Geoffrey Sang moved to court challenging his arrest by the DCI.
Sang was arrested in April over a suspected dams construction scandal.
“The DCI has no power and authority to institute criminal proceedings before a court of law without the prior consent of the DPP and any proceedings so commenced are unconstitutional, illegal, unlawful, null and void,” the judge ruled.
Judge Odunga faulted the DCI for arresting Sang without a warrant of arrest.
“Actions of the DCI proceeding to arrest the petitioner on April 24, 2020 without any warrant of arrest and proceed to interrogate or question him without issuing him with any summons or formally informing him of the nature of allegations he is being investigated was discriminatory as stipulated in Article 27 of the Constitution of Kenya 2010,” the judge held.
The court further held that the search and confiscation of Sang’s mobile phones and laptop without a court order or search warrant violates his right to privacy and property as envisaged in Articles 31 and 40 of the Constitution.
Sang had told the court that his arrest by DCI officers, his interrogation and subsequent decision to charge him with the offence of abuse of office was maliciously instigated.
He said individuals at the authority colluded with DCI officials to have him take a plea as a public officer so that he steps aside and be removed from office in order for their preferred candidate to be appointed.
The judge further ruled that Sang can resume his position at the National Water Harvesting Authority due to the nullity of the charges.
“Accordingly, the said action by the DCI can no longer be a basis for the removal of the petitioner from his position,” Odunga ruled.
The judge held that based on the material placed before court, there is no basis he found that the removal of Sang or threat of his removal from his position was informed by the criminal proceedings.
In April, the DCI arrested Sang over graft charges but the DPP did not approve his prosecution and instead recalled the file for the review.
Kinoti accused Haji’s office of interference and inordinate delays in their criminal probes.
In an internal communication to his team, Director of Investigations at the Bureau John Kariuki said they will no longer send any progress report to Haji’s office.
Instead, they said they will only send complete investigation files.
“The PUI (Person Under Investigation) files shall not be forwarded to the DPP until the investigations are complete as this tends to interfere with the ongoing investigations, thus hampering and delaying the investigation process unnecessarily,” Kariuki said.
The communication meant that the DCI had effectively locked out the DPP from their investigations in what signals the end of the earlier camaraderie between Haji and Kinoti.
Although the law gives prosecutorial powers to the office of the DPP, Kinoti is understood to be planning to prosecute cases himself.