Activist Okiya Omtatah has taken on the public prosecutions office and the anti-graft watchdog for failing to revive a criminal case against the acting Director of Surveys, Polly Wanjiku Gatimu, who was five years ago adversely mentioned in the Sh8 billion Karen land saga.
Ms Gatimu was charged in 2015 for allegedly aiding the grabbing of a 134.4-acre piece of land in the prime suburb, but the case collapsed, over what Mr Omtatah now says was a typographical error and a technicality that saw 127 graft cases terminated.
The acting Director of Surveys was at the time charged alongside the then Lands Cabinet Secretary Charity Ngilu, former NSSF managing trustee Joss Konzolo and two Lands registrars, Sarah Njuhi Mwenda and Mark Muigai Wanderi.
Reached out-of court deal
The criminal case was filed following an Ethics and Anti-Corruption Commission (EACC) investigation.
Among 126 other criminal cases filed after EACC investigations was one against former Transport CS Michael Kamau. Mr Kamau sued to challenge his prosecution on grounds that the EACC did not have the minimum required three commissioners when making the decision to charge him.
The Court of Appeal agreed with Mr Kamau, a move that saw 127 graft cases, including the one against suspects in the Karen land saga, collapse.
Ms Ngilu had at the same time sued to stop her prosecution, and while the suit was at the Court of Appeal she reached an out-of-court deal to drop all criminal charges against her.
The out-of-court deal recorded in court indicated that as Lands CS, Ms Ngilu had been tricked into allowing the Karen land grab.
But while initially recording the out-of-court deal, the judges inadvertently wrote that the entire criminal case was terminated, which Mr Omtatah now insists was a typographical error that partly aided Ms Gatimu and others to escape scrutiny.
The Court of Appeal later corrected its record to indicate that only the case against Ms Ngilu was terminated.
But the Court of Appeal decision in the case filed by former Transport CS Mr Kamau also led to the EACC dropping its pursuit of Ms Gatimu and other accused in the Karen land case.
The activist has now faulted EACC and the Office of the Director of Public Prosecutions (ODPP) for not reviving the case against Ms Gatimu.
"It is not acceptable that Ms Gatimu ... who allegedly procured, registered and authenticated fraudulent instruments such as the questionable deed plans, was let go scot-free on a mere typing error in the original consent recorded in the Court of Appeal.
"We are aggrieved that even though the EACC has long since been properly constituted, both the EACC and DPP have made no efforts to prosecute and conclude this grave matter," Mr Omtatah says in a demand letter.
The demand letter has been received by the EACC, DPP's office and the Attorney General's office.
EACC investigations at the time showed that the land was owned by Muchanga Investments, owned by tycoon Horatius Da Gama Rose.
The probe indicated that the land could have been irregularly transferred to Habenga holdings, Jina Enterprises and Telesocurce.Com by creating new ownership documents while hiding the original title deed registered to Mr Da Gama Rose's Muchanga Investments.
Muchanga Investments sued the three firms and the Lands ministry in 2014 at the civil court seeking to be declared the legitimate landowner.
175 public officials
Mr Da Gama Rose died in 2016 aged 71, as the case he filed was still proceeding. The suit is yet to be determined, but several witnesses have since testified.
The 127 graft cases that collapsed involved 175 public officials.
President Uhuru Kenyatta in 2015 received an EACC confidential report on graft cases against touching on public officers.
He then instructed the anti-graft watchdog to conclude investigations and pursue criminal charges against individuals found culpable.
The President then reshuffled his Cabinet, offloading individuals implicated in various scandals like Ms Ngilu and Mr Kamau.
The Court of Appeal did not, however, close the door on fresh investigation and prosecution of individuals whose cases collapsed.
Mr Omtatah argues that Ms Gatimu is holding office despite having unresolved issues surrounding the Karen land saga.