The High Court on Wednesday freed former Local Government PS Sammy Kirui after the prosecution failed to prove he abused his office in purchasing unsuitable land for a Nairobi cemetery in 2009.
Justice John Onyiego quashed the three year sentence imposed on him by a lower court, saying the state failed to prove abuse of office beyond a reasonable doubt.
The Sh283 million land was in Mavoko, Athi River.
Kirui had been accused of using his office to improperly confer benefit to a company, M/S Naen Rech Limited. The company allegedly received payment of Sh283,200,000 for irregular purchase of the 120 acres.
Kirui is said to have authorised the payment after he learned of concerns by the Nairobi planning department over the land's suitability for use as a cemetery. Naen was offering the land for sale to the city council.
But Judge Onyiego said there was no proof that Kirui conferred a benefit to himself. He said Kirui's role was that of a "conveyor belt" and he had nothing to do with the valuation report.
The court, however, upheld the three-year jail terms imposed on former Legal Affairs secretary to the Nairobi City Council Mary Ngethe and former tender committee chairman Alexander Musee.
Onyiego dismissed claims their sentences were excessive. He said he does not find any illegality and has no reason to interfere considering the gravity of offence. The court said it was satisfied that Musee was properly convicted.
Ng’ethe and Musee were in 2018 found guilty by mgistrate Douglas Ogoti of giving a misleading report purporting that the committee had agreed to buy the lands in Mavoko town. They also used a false valuation report to award the tender.
Former clerk, John Gakuo (now deceased), Kirui, Ng’ethe and Musee were all convicted for their role in the purchase of land meant for a cemetery in Mavoko. Gakuo died while serving his sentence.
The other three appealed to the High Court. They had been granted bail pending appeal. On Wednesday Onyiego directed their bond of Sh5 million each be refunded as they proceed to serve the sentence.
Onyiego directed DCIO Kilimani to investigate whether medical reports presented by Ng’ethe were forged. She had furnished the court with medical reports from Lancet Lab claiming she is sick. This resulted in five court delays.
The directive by Onyiego follows the DPP's testimony that N'gethe's documents could have been forged. The DPP said Ng'ethe's name does not appear in Lancet's system as she had claimed.
"We received documents from Lancet confirming that lab tests on Ng'ethe did not emanate from them," the state said.
"As such, Mary ought to be investigated for committing an offence of perjury and uttering a false document," the prosecution said.
(Edited by V. Graham)
