The fight against graft received a big boost on Wednesday when the High Court ordered a corruption suspect to pay the state back over Sh300 million.
Anti-corruption Judge Hedwig Ong’undi ordered former Nairobi county finance chief Jimmy Kiamba, to pay the government Sh317 million for unexplained assets.
She said the Ethics and Anti-Corruption Commission established on a balance of probability that the cash deposits which Kiamba tried to explain through his revenue collection, constituted unexplained assets and should be forfeited to the state.
“I am therefore convinced from the totality of the evidence that commission’s suspicion of corruption or economic crime having been committed by Kiamba was reasonable hence the investigation,” she said.
Ong'undi directed Kiamba pays the state Sh282,648,604 and a further sum of Sh35 million in default of which his property in Runda be forfeited to the government.
Kiamba had claimed that he got Sh21,971,810 as cattle revenue, Sh17,094,610 as wheat revenue, Sh12,478,430 as maize revenue.
He also cited Sh228,103 as transport and quarry revenue, Sh35 million landed property and Sh300,000 from Kwanga Mboya Advocates all totalling to Sh317,648,604.
But the court held that they constituted unexplained assets.
The Judge said there was no evidence to prove the huge sales of maize Kiamba made which earned him Sh12.4 million.
Kiamba had explained that he did not annex any lease agreement because he grew the maize on his father’s land hence did not require a lease.
But the Judge said that owing to the kind of revenue generated by the said business, it was imperative for him to demonstrate the existence of the land and the acreage.
“He should have attached the title documents in his father’s name and proof of the relationship between him and the registered owner,” the Judge said.
As for the cattle and wheat business, Kiamba indicated that he conducted them on a 100-acre piece of land which he leased from Kitilal Ole Ntuu in Narok at the cost of Sh500,000 per year.
He produced a lease agreement and attached a bundle of receipts as evidence of payments to the casual labourers who worked on the farm.
The lease agreement was executed on July 27, 2012, for a period of 15 years with effect from August 1 2012.
On the other hand, the financial analysis produced by him showed that he started earning revenue from cattle and wheat in 2010.
“That in my view is incredible because by that time, the piece of land in Narok had not been leased and he did not tell the court that he had an alternative piece of land from where he carried out cattle and wheat business. There is no evidence of the particular sales,” the Judge said.
The Judge held that the anomaly cast doubt on the existence of the cattle and wheat business and it was for that reason that the indicated revenue from the said business constituted unexplained deposits.
As for Austers Bar, Kiamba attached an undated agreement between him and one Augustine Bahati. It showed that Kiamba was a silent partner in the business pursuant to an agreement dated September 26, 2005, which was not exhibited in court.
Ong’undi said the genuineness of the said agreement was doubtful but unfortunately, the revenue from Austers Bar was not separated from that of Kadongo Bar in Mishomoroni Mombasa.
“If the agreement is true, it falls outside the period of interest and cannot, therefore, explain the bar earnings,” she said.
As for the transport and quarry business, Kiamba had told the court that he conducted most of it under the name and style of Puffs Agencies.
The business involved the hiring of lorries and trucks as well as sourcing and delivery of building materials. He said that he hired the trucks from Japawa Investments and attached some bank slips showing some cash deposits to the account of Japawa.
In addition, the ownership of Puffs Agencies by Kiamba was contested by the commission on the grounds that he did not establish a link between him and the business.
The Judge agreed with the commission that Kiamba had not provided any documentary evidence to establish a link between Puff and him.
“I do not see why he could go to great lengths to attach all those recipes from Puffs Agencies and omitted a simple business name certificate. Why would some recipes be issued in his name and others in his business name if they referred to the same business?” asked the Judge.
Og’undi said Kiamba should have at least attached registration documents to show that the trucks were owned by Japawa and evidence from Japawa investments confirming their special relationship.
“The totality of my analysis is that the explanation of the transport and quarry business was not sufficient and as such the revenue of Sh228,103,753 from the said business constitutes unexplained assets,” she said.
The Judge, however, found revenue from rental income and water business to have been sufficiently proved.
The commission filed the matter in 2016 seeking the forfeiture of Kiamba’s assets worth Sh872,094,147 but after proper analysis, it reduced the claim to Sh575 million.
The anti-graft body also went after Tracy Musau, Jimbise Limited and Muthaiga Green Acres Limited.
The three came into the picture by virtue of Kiamba’s association with them and the flow of the cash under investigation.
The forfeiture is a big win for the commission as it has bolstered the war on corruption.
Kiamba is also currently on trial for the loss of Sh213,327,300 at the county government between January 16, 2014, and January 25, 2016.
He has been charged alongside former Nairobi Governor Evans Kidero and eight others.
The Judge yesterday said it is not in dispute that Kiamba was a public servant during the period of interest being August 2009 to February 2015.
The highest salary in his position as at January 2015 was Sh145,320. From the bank statements and list of landed properties presented in court, Kiamba’s wealth was slightly above Sh1 billion.
The commission averred that the only justifiable legitimate source of income is Kiamba’s salary and the total net salary for the period of interest indicated was Sh5.8 million.
This led the court to conclude that Kiamba was in possession of assets whose value was disproportionate to his known sources of income.
With regard to the admitted net deposit in his various bank accounts, Kiamba explained that he owned several businesses apart from employment.
He produced audited books of accounts from August 2009 to February 2015. The same was not disputed by the commission after it did a further analysis showing he earned Sh522 million for 2010-2014 financial years.
At the conclusion of the hearing, parties agreed they would not contest four properties and seven motor vehicles to be discharged. Among the properties was a maisonette in South C, and the rest in Machakos.
After eliminating the four, the court dwelt on eleven properties which it believed required an explanation on how they were acquired.
Some of the properties were a different maisonette in South C, a townhouse in Kileleshwa, an apartment in Nairobi, properties in Old Muthaiga, Runda, Pritt Lane Court among others.
