• DPP says the Sh80 billion that the petitioner and his co-accused intended to steal made nonsense of the Judiciary’s annual budget of Sh19.5 billion, DCI’s 7.5 billion and Parliament's 45.5 billion.
Former Treasury CS Henry Rotich, ex-PS Kamau Thugge and others planned to steal over Sh80 billion through the Arror and Kimwarere dam projects, the public prosecutor has said.
The Director of Public Prosecution's special counsel Taib Ali Taib says in an affidavit that their investigations revealed there was a conspiracy to steal the money.
Taib's affidavit was filed in response to a petition by Richard Malebe to stop his prosecution in the graft case.
Taib says that investigations began on September 18, 2018 when DCI received a complaint about the governance and operation challenges in the management of the Kimwarer and Arror dam projects.
“The Sh80 billion that the petitioner and his co-accused intended to steal made nonsense of the Judiciary’s annual budget of Sh19.5 billion, DCI’s 7.5 billion, Parliament's 45.5 billion and makes Goldenberg scandal look like pocket change,” court documents read.
Malebe who is yet to plead to the graft charges is alleged to be a director with CMC Di-Ravenna Kenya branch.
He petitioned the courts in February to stop his prosecution and was granted temporary orders by Justice Mumbi Ngugi.
Taib said that a concept paper involving seven dam projects among them Kimwarer and Arror multi-purpose dams was sent to Cabinet for approval.
“The said projects were concocted purely for purpose of looting public funds but as they were not part of the National Water Master plan could only be made possible with the cooperation and conspiracy of the accused persons working for a common unlawful purpose,” the affidavit reads.
The DPP further claims that indisputable facts will prove that Kimwarer Multipurpose dam project was never approved.
Yet, the DPP says, the accused persons ventured into its construction and development and unlawfully conspired and succeeded in making and receiving payments.
He adds that CMC Di Ravenna–Kenya was paid part of the funds defrauded in excess of Sh100 million.
The DPP also says that Malebe omitted crucial documents to enable the court to arrive at a decision based on them.
“The petitioner misrepresented himself to this court, lied and failed to disclose important material documents before this court and obtained temporary orders from the court as a result,” Taib said.
Taib said Malebe failed to produce a letter of police to the registrar of companies seeking to get the names of directors of CMC Di Ravenna-Kenya.
He says the letter of the registrar says Malebe is the director listed as the last one.
By evidence given he is the director and authorised person of the company. He is responsible for any crimes committed by the company.
“No one is prosecuting Malebe because he is an advocate. He is being prosecuted because he is an alleged criminal who had facilitated the Italians in the alleged fraud,” Taib said.
Malebe said that the investigators omitted the list of actual directors by hiding the actual directors of CMC Di Ravenna-Kenya.
“The registrar of companies wrote a letter dated February 13, 2019 to the investigator and after that on February 14, 2019, Malebe recorded his statement explaining his role in the company.
“Surprisingly another letter dated March 22, 2019 emerged showing that he is listed as a director,” Malebe’s lawyer said.
He added that the way the prosecution has behaved towards Malebe is likely to lose faith in the war against corruption.
Malebe sought the intervention of the court to stop his prosecution.
He said the charges have been preferred against him in a manner that is an outright abuse of the DPP’s powers contrary to law.
Malebe alleged that he was charged solely for rendering his professional services in the registration of a company.
He said that on February 14, 2019 he was summoned by the DCI for interrogation about his involvement with a Kenya foreign company, CMC Di Ravena.
He asked the court to intervene because the DPP’s actions amount to abuse 0f power and abuse of the court process.
Malebe also said that the process is meant to intimidate, harass and interfere with his professional functions as an advocate and certified public secretary.
Justice Ngugi will give a ruling on April 29.
In the case, Rotich and Thugge, former PS Susan Koech, Former Kerio Valley Development Authority MD David Kimosop, Kennedy Nyachiro (chief economist and), Jackson Kinyanjui (head of Europe division) and Titus Muriithi (director of resource mobilisation at Treasury) have been charged with Sh63 billion Kimwarer and Arror dams graft case.
They were all accused of jointly conspiring to defraud the government of millions of shillings by entering into a deal to construct the two dams, without approval.
They allegedly committed the offence between December 2014 and January 31, 2019.