• Porcelli has challenged the constitutionality of the charges against him.
• His lawyers say he has not been interviewed or his statement taken prior to charging him.
Image: MATHEWS NDANYI
A court yesterday issued a warrant of arrest against Italian Paolo Porcelli for failing to appear in court for the second time.
Porcelli is the CEO of CMC di Ravenna which has been adversely mentioned in the Arror and Kimwarer dams scandal.
In an application filed in court, Porcelli through his lawyer Kevin Anami has challenged the constitutionality of the charges against him.
In an affidavit sworn by his Italian lawyer Ermenegido Constable, he argues the charges are defective.
The lawyers say the charges do not clearly inform the actions or inactions by him that violated the law.
“The charges fail to properly describe him, designation or capacity in which he acted or did not act that attracted the charges against him as required under the law,” the application reads in part.
Porcelli says he is not a beneficiary of any money received in respect to the International Engineering Project Construction and Financing contract (EPCF) arising from an international tendering process and there exists no charges or particulars that identify him as having benefited from the payments released as a consequence of the agreement.
Constable says allowing the charges to stand and for plea to be taken shall result in egregious curtailing, subjugation and gross violation of Porcelli’s rights as enshrined under the law.
“It is not readily apparent from the reading of the charges of conspiracy to defraud levelled against him the actions or inactions that he personally undertook that inform him sufficiently of the offence he is accused of committing which would enable him understand the charge and therefore take plea,” he further adds.
The lawyers argue that the DPP has made a deliberate attempt to confuse and conflate the nature of financing of the contract, which was the subject of the floated tender and negotiated in good faith as an EPCF contract and mischievously opted to convert it into a public private partnership contract.
They have also claimed that there is no attempt by the DPP to inform Porcelli through the charge of the circumstances surrounding any alleged offence he personally committed by detailing the place, time and the act or omission.
The lawyers say the Italian has not been interviewed nor his statement taken prior to charging him so that the investigators and the prosecutor can contextualize the role he may have played if any.
“It is clear that there are several senior government officials that have been charged alongside him for allegedly failing to follow procurement producers but there is no mention of Porcelli participating in and inducing any such alleged contravention, which leave the conspiracy charge tenuously hanging by a very limp legal thread,” his lawyer argues.
Last week, Former CS Henry Rotich and his PS Kamau Thugge were charged with conspiring with others including Porcelli to defraud billions of shillings in the dams scam.
Porcelli was expected to appear in court yesterday morning but instead Anami produced an application asking the court to hear them.
However, special prosecutor Taib Ali Taib opposed the bid to hear application arguing that Porcelli is a fugitive and the court should declare him as one.
Taib argued that no Kenyan or African can behave like that in an Italian court if they were needed to be there.
Anami said that he had full instructions from the two companies to enter plea on behalf of the two companies, the Kenyan branch and the Italian one.
The court entered a plea of not guilty against the two companies CMC di Ravenna- Itenera JV Kenya and Italy.
Taib opposed the bid by Anami to take plea against the two companies saying it should not be allowed because there is nothing showing that the he has any instructions.
In his final ruling, Ogoti issued warrants of arrest against Porcelli and declined to withdraw the plea entered against the companies saying that he cannot review his own decision.