• The case was filed in Mombasa before Justice Njoki Mwangi and certified as urgent
• The directors say the recent revelations by the EACC that a document in the name of the company was forged, exonerated them from any wrongdoing
Two directors of Tornado Carriers Limited have sought anticipatory bail to bar their arrest in a land compensation case in which senior land agency officials have been charged with corruption.
Shakeel Khan and Nazir Matabkhan face charges of conspiring to commit fraud through the payment of Sh109,769,363 for purported compulsory acquisition of land for the Kenya National Highways Authority (Kenha) in 2017.
They could also be charged with the fraudulent acquisition of Sh55.2 million belonging to Kenha from the National Land Commission's account.
Their bail move comes a few days after the Ethics and Anti-Corruption Commission confirmed that the senior NLC officials forged and sneaked in a document in the name of Tornado Carriers. This, the anti-graft agency says, would help the NLC officials to get Sh54.5 million in kickbacks.
But through lawyer Kinyua Kamundi, Khan and his father, Matabkhan, want to be cleared of the alleged offence, saying the recent revelations by the EACC exonerated them from any wrongdoing.
“It would be most painful, oppressive, malicious, sadistic and vindictive to arrest persons who have been cleared of wrongdoing, take them to Nairobi to plead to charges they have been cleared of and to subject them to a prosecution at the instance of a commission that does not exist under Article 79 of the Constitution and under a statute that has not been enacted contrary to the false allegations by Parliament in Section 2 of the Anti-Corruption and Economic Crimes Act,” Kamundi said.
The case was filed in Mombasa before Justice Njoki Mwangi and certified as urgent. The EACC, however, wants the case transferred to the Anti-Corruption Court in Nairobi where several NLC officials have been charged. It says the Mombasa court has no jurisdiction hear the application.
The court is to rule today if the application for anticipatory bail should be heard in Nairobi. Justice Mwangi referred the case to Justice Thande Mugure as she was going on leave.
The EACC, in response to a suit filed by NLC deputy director of valuation and taxation Joash Oindo, said the amount was inflated to enable the officials to get kickbacks. Oindo had defended the Sh109 million issued to Tornado Carriers as just.
EACC investigator Catherine Ngari said they had established that a letter purported to be from Tornado Carriers had sought the release of a further Sh54.5 million to an I&M Bank account belonging to lawyer Catherine Chege.
But Kamundi had argued that his clients had been absolved of blame and that in their voluntary statements to the EACC on March 4 and 5 denied any knowledge of the Sh109 million.
“The EACC has now confirmed that the letter dated October 30, 2017, to the effect that Tornado Carriers Ltd accepted Sh109 million and authorised that Sh54.5 million be sent to another person was forged,” he said.
The directors have accused the Director of Public Prosecutions of shielding some individuals who were to be prosecuted.
“Not all persons who benefitted from the Sh54.5million are included in the press statement by the DPP dated April 16 this year. This creates a possibility that the prosecution is targetted and other individuals are being shielded,” Shakeel said.
In an affidavit, Khan says his father suffered a stroke 15 years ago and another stroke 10 years ago and on account of his age will have his health and life severely threatened if he is subjected to continued harassment and intimidation, including imminent incarceration.
“Our families have been subjected to immense harassment and intimidation in the hands of the respondents, including arbitrary raids and searches at our premises without warrants,” he added.
Khan said the company did not receive the Sh109,769,363 and did not authorise the disbursement of such funds to the company and to Catherine Chege & Company Advocates.
“The company lost as it has not received full and prompt compensation. No amount of compensation or any remedy can compensate a person for illegal and unconstitutional arrest, prosecution and detention,” he said.
(Edited by F'Orieny)