ODPP, EACC clash in court over Obado's Sh235m graft case deal

The Anti-Corruption Court in Nairobi on Friday directed the Office of the Director of Public Prosecutions (ODPP) to serve the Ethics and Anti-Corruption Commission (EACC) with a plea-bargaining agreement in a Sh505 million corruption case.

Principal Magistrate Charles Ondieki issued the orders after Tower of Babel court session in which the DPP and the EACC traded accusations over the fate of former Migori Governor Okoth Obado and his co-accused.

Obado is on trial alongside his four children—Dan Achola, Scarlet Susan, Jerry Zachary and Evelyne Odhiambo—as well as businessman Jared Oluoch Kwaga, his wife Christine Ochola, brothers Joram Opala and Patroba Ochanda, and sister-in-law Carolyne Ochola. They face 25 counts related to corruption.

The magistrate noted that while it is not mandatory for the DPP to supply the Commission with a plea agreement, there is an established court practice requiring that all parties involved in negotiations be kept informed.

“Concerning the principal issue raised by EACC, it is imperative to underline that although not obligatory upon the DPP, sharing the draft plea agreement with EACC is a practice which this court has previously endorsed as the gold standard. This is due to the spirit of negotiations and the fact that the resultant product arises from discussions in which the EACC is usually a participant. It thus remains the best practice, and I find no reason to fault it, given EACC’s undeniable participation,” ruled Ondieki.

On one side, the Abdi Ahmed Mohamud-led Commission accused the Renson Ingonga-led ODPP of failing to provide the agreement.

EACC counsel Mary Ng’ang’a contended that the Commission was unaware of the agreement’s contents despite being required to sign it.

She argued that as the constitutionally mandated anti-graft agency, any decision to exclude it would amount to an injustice to Kenyans. According to her, the DPP had kept the EACC in the dark despite its critical role in the matter.

On the other hand, the prosecution alleged that EACC representatives attended three meetings— the most recent on 28 August—but declined to sign the agreement.

It emerged that Ingonga had used the agreement as a basis for dropping charges against Obado in a civil case settlement filed by the EACC, in which the former governor agreed to surrender property worth Sh235 million to halt further action by the Commission before the Anti-Corruption High Court.

Prosecutor Norah Atieno said the DPP, EACC, and the accused all held three meetings to negotiate the plea-bargaining agreement.

She stated that throughout the process, the ODPP operated under the assumption that EACC representatives had full instructions from their superiors. However, Atieno added that the EACC declined to sign the final document.

According to Atieno, Obado’s lawyer had approached the ODPP seeking an out-of-court settlement. Following the request, the DPP informed the EACC and agreed to initiate negotiations with the accused persons.

She maintained that the Commission had all along shown a willingness to settle the criminal case outside court.

In the contested agreement, Obado and the other accused persons acknowledged that they were entering the arrangement voluntarily, with all 25 charges listed.

They were also to acknowledge that they would forfeit their right to a full trial if the court accepted the DPP’s application to withdraw the charges.

Notably, the agreement did not include any provision for compensation or restitution by the accused.

Obado’s lawyer, Kioko Kilukumi, backed the DPP’s position. He argued that there is no legal requirement for the EACC to be party to a plea bargain.

Kilukumi stated that the EACC had earlier gone to the Anti-Corruption High Court seeking the forfeiture of Sh73 million.

He said the EACC negotiated with Obado on the understanding that the criminal case would be withdrawn once he paid the agreed amount in the civil suit.

“An agreement was signed on 4 June 2024 and filed in the two civil cases,” argued Kilukumi.

He said Obado surrendered assets worth Sh235 million to the EACC—triple the amount the Commission had initially claimed.

“It was assumed that had the court convicted him, he would have paid double the amount,” Kilukumi added.

“For them to now turn around and portray the DPP’s office as having done something improper is nothing more than a public relations gimmick, aimed at appearing morally superior without justification,” he argued.

Kilukumi added that because the agreement did not include any compensation clause, there was no requirement for EACC’s signature on the plea bargain.

Another lawyer, Rodgers Sagana, noted that Obado had surrendered eight properties and two vehicles in the forfeiture case.

He said one of the properties, located in Loresho, and the two vehicles are also central to the criminal case.

“A property in Loresho and two motor vehicles are the subject of this case,” Sagana explained, adding that negotiations were based on the restitution agreement with the Commission.

“On 28 August 2025, in a surprising turn of events, the EACC declined to sign the agreement. As rightly noted, they are not party to the agreement,” he said, urging that the Commission be excluded from further involvement in the case.

In response, the EACC insisted that the established practice is for a draft agreement to be shared with all parties, allowing them time to seek instructions from their superiors before signing.

“Our plea is very simple—we be supplied with the agreement, we seek instructions, and once we receive them from our bosses, we will sign,” said EACC counsel Gichangi Njeru.

According to him, the law clearly requires the DPP to consult the investigating officer before entering a plea agreement.

“Without the participation of the EACC, the plea bargain agreement does not meet the requirements of Sections 137A to 137O of the Criminal Procedure Code,” he added.

Njeru stated that there was no prior agreement between the EACC and Obado that the criminal case would be dropped. He argued that the plea deal should instead be used as evidence against him.

In the agreement filed before Justice Esther Maina, the EACC noted that it had instituted two separate civil suits seeking the forfeiture of Sh1.9 billion and Sh73 million from Obado.

The agreement was signed by EACC Chair David Oginde, former CEO Twalib Mbarak, and 29 individuals representing Obado, the implicated companies, and other accused parties.

The court adopted the agreement on 19 June 2024. It now lies at the centre of the standoff between the DPP and the EACC.

The case will be mentioned on 30 September 2025.