• Directors expected to present themselves before anti-corruption court in Nairobi on Monday.
• They are alleged to have received irregular compensation from NLC for land situated in Miritini, Mombasa.
Two directors of Tornado Carriers Limited, a company linked with the alleged fraudulent land payout deal of Sh109m, have now been granted anticipatory bail.
Father and son Shakeel Ahmed Khan and Nazir Ahmed Matabkhan are also required to pay a bail of Sh50,000 each.
Mombasa judge Thande Mugure issued orders restraining the Ethics and Anti-Corruption Commission, Director of Public Prosecution, Attorney General and the Directorate of Criminal Investigations from arresting or harassing the two.
In the ruling delivered on Friday, after the application was logged by their lawyer Kinyua Kamunde, the two directors are expected to present themselves before the anti-corruption court in Nairobi on Monday to take plea .
“In default, the EACC shall be at liberty to execute the warrant,” said Justice Thande.
Former National Land Commission Chair Mohammad Swazuri and other senior officials and companies have already been charged in relation to alleged irregular compensation for the land situated in Miritini.
“Court must also caution itself to strike a balance between protecting the rights of the applicants as guaranteed by the Constitution and interfering with the mandate of the state agencies," the judge ruled.
During the last submissions, the EACC accused NLC officials of sneaking in documents and forging signatures belonging to Tornado Carriers Limited directors in order to inflate the amount and get kickbacks of up to Sh54.5million.
Kamundi argued that since the revelation had so far exonerated his clients from any blame, they should not be arrested or charged.
But the EACC said the applicants have misapprehended the import of the contents of an affidavit filed by its investigator Catherine Ngare that seemed to blame the EACC.
“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 subject them to a prosecution at the insistance 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 No. 3 of 2003,” Kinyua had argued.
The EACC, in response to a suit filed by Joash Oindo, NLC’s deputy director valuation and taxation, defending the Sh109 million award to Tornado Carriers as just, had said the amount was exaggerated in order for the officials to get kickbacks.
Ngare had said they established that a letter dated October 30 2017 purported to be from Tornado Carriers Limited seeking the release of a further Sh54.5 million was to be sent to the I&M account belonging to advocate Catherine Chege.
The directors are to face charges of conspiring to commit an offense of corruption through the fraudulent payment of Sh109, 769, 363, for purported compulsory acquisition of land from Tornado Carriers Limited for the Kenha between January 11 and December 5 2017.
They are also to be charged with the fraudulent acquisition of Sh55,269,363 belonging to Kenha from the account of NLC.
But Kamundi has now also accused the DPP of shielding some individuals who were to be prosecuted.
“Not all persons who benefitted from Sh54.5million are included in the press statement by the DPP dated April 16th this year, which creates a possibility that the prosecution is targeted and other individuals are being shielded,” Shakeel said in his affidavit.
In a supporting affidavit filed by Shakeel, he said 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 eminent 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.