Barely three months after the anti-corruption court set free 23 suspects implicated in the loss of Sh47.6 million at the National Youth Service, another loss of public funds in the same institution has surfaced.
The suspects — among them former Principal Secretary in the Ministry of Devolution Peter Mangiti and senior deputy director general Adan Harakhe — had been jointly charged with conspiring to unlawfully dispose public cash. They were also accused of failing to comply with procurement laws.
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Trial magistrate Kennedy Bidali, however, acquitted the suspects without placing them on their defence. The evidential threshold requires a suspect to be put on their defence. The Director of Public Prosecutions has appealed the decision that infuriated the public and put the Judiciary on the spot.
This came soon after the same magistrate acquitted former Nairobi county chief finance officer Jimmy Kiamba and three others. Bidali cleared Kiamba and his co-accused on charges of abuse of office and fraud. He ruled that the prosecution had failed to establish a case against the suspects.
The Ethics and Anti-Corruption Commission had charged Kiamba after a probe revealed he deposited Sh1.3 billion in his private and business accounts for more than five years, despite earning a salary of only Sh85,000 per month.
Bidali applied the same thinking on March 9 in the case against the NYS scandal suspects. He ruled that there was insufficient evidence provided by the prosecution and set free the suspects — leaving only one accused person with a case to answer. Selesio Karanja, a supply chain assistant, was found to have a case to answer and was subsequently placed on his defence. Karanja is accused of fraudulent practices in procurement.
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The magistrate acquitted the suspects on all the counts preferred against them by the EACC, which investigated the case. He ruled that the DPP failed to prove they had conspired to unlawfully dispose the money, which was paid off to Blue Star Enterprises Ltd following a tender for purchase of automotive machinery for training of NYS recruits.
He said there was not sufficient evidence on record to draw an inference that the accused persons conspired to commit an economic crime. Not even a decision by the Ministerial Tender Committee to use a restricted tender method to procure the machinery could be questioned by the investigators and the court.
Bidali dismissed the prosecution’s position that the procurement regulations had been flawed on the use of the restricted tender method because there was no urgency in the acquisition of the equipment.
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The members of the tender committee could not be held accountable because there was urgency in obtaining the equipment due to the high number of NYS recruits.
Mass acquisition of equipment was neccesary for training. The equipment was of a technical nature and the recruitment of NYS trainees was in line with the government’s five-pillar plan.
Furthermore, the director general of the NYS then originated the request for use of the restricted tender method and came up with a list of 10 firms, including Blue Star Enterprises Ltd.
“I am of the considered view that the decision of the ministerial tender committee to use restricted tendering as a mode of procurement cannot be faulted,” the magistrate said.
According to the magistrate, the prosecution had failed to prove that the award of the tender to Blue Star Enterprises for supply of machinery and equipment by the Ministerial Tender Committee
was flawed.
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On accusations that the proprietors of Blue Star Enterprises had conspired with members of the ministerial tender committee to commit an economic crime, the magistrate found there was no nexus to prove the allegation.
The magistrate said the prosecution had failed to show that the actions of Betty Njoki Muriithi and Jeniffer Muthoni Kinoti, proprietors of Blue Star, were fraudulent. He said the two applied for and won the tender.
They subsequently supplied the goods and were paid accordingly. He dismissed the charge of fraudulent acquisition of public property against them.
Following the ruling by Bidali, only one charge against Karanja remained. That he engaged in a fraudulent procurement and delivery of materials vide Automotive Engineering Contract No: NYS/RT/29/2014-201, by inserting the name of Dama Services Limited in the tender opening register, whereas the company had not been approved for the tender.
It is against this background that keen observers are watching to see what will be achieved in the ongoing investigations, among them the second NYS scandal and the Ruaraka land saga.
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