- Rotich, Thugge and Koech were jointly charged with defrauding over Sh2.5 billion from the state.
- The court allowed DPP's application for withdrawal of charges against Thugge and Koech.
The Director of Public Prosecution Noordin Haji believes former Treasury PS Kamau Thugge will help him nail his ex-boss Henry Rotich.
Rotich, Thugge and Koech were among 20 people accused of involvement in the Arror and Kimwarer dams contract with other top officials and directors of Italian firm CMC di Ravenna.
But Thugge, who served under Rotich, struck a deal with the state prosecutor in which he might take to the witness stand against his former boss in the Sh64 billion scandal.
A lawyer familiar with the plea bargain told the Star that the decision to convert Thugge into a state witness will strengthen the case.
"The DPP needed a high profile insider to testify. Having charged so many officials, there was no one to testify against those charged. So it makes logical sense to cut a deal with Thugge," the lawyer said.
Haji has also negotiated a plea bargain with former Wildlife Principal Secretary Susan Koech to testify against Rotich.
The state could, therefore, drop the charges facing Thugge and Koech in return as the prosecution moves to nail Rotich, who fell from the helm of the Treasury after he was charged.
The plea negotiations between the DPP's office and the two ex-PSs could present a major breakthrough in the high-profile graft case that has dragged for the last 17 months.
On Tuesday, assistant DPP Alexander Muteti informed chief magistrate Douglas Ogoti that the State was no longer interested in prosecuting Thugge and Koech as they will now be state witnesses.
Muteti asked the court to withdraw the charges facing the two former principal secretaries.
So far in the file relating to Rotich, the DPP has withdrawn charges against four accused persons.
In November 2019, the DPP withdrew charges against Bernard Kibet and Livingstone Bumbe who had been charged with breach of trust. The two were senior officials at the National Treasury.
The DPP had ordered the arrest of the senior government officials and other high-flying officers after investigations revealed that the dams contract was awarded for Sh17 billion more than was in the original contract.
After the DPP ordered Rotich's prosecution, Deputy President William Ruto's allies accused the state of selective prosecution targeting the DP's associates for political reasons.
On Tuesday, Ogoti allowed the DPP's application and directed that Thugge and Koech’s cash bail be reimbursed, making them free men off the Kimwarer and Arror scandal.
This is a major blow to Rotich who just last December, went to the High Court seeking orders to quash his prosecution arguing that the charges were illegal as he was never the accounting officer.
Rotich had said in his court documents, that the alleged procurement violations he was accused of could only be committed by the accounting officer or employees in the procuring entity.
The Kerio Valley Development Authority was the procuring entity for the two dams that snowballed into a mega scandal that nearly brought down the Jubilee administration.
“I am not the accounting officer or employee of the procuring entity (KVDA) or the parent ministry and furthermore, the ministry of environment in a letter dated March 2016 stated that the board of directors of KVDA approved the development of the two dams,” Rotich had argued in his court submissions.
The former CS had further claimed that the National Treasury or himself had no role to play at all in procurement matters at KVDA, saying the DPP had even disclosed documents that demonstrate prior planning.
Former KVDA boss David Kimosop and former Treasury officials Kennedy Nyachiro, Jackson Njau and Titus Muriithi were also charged.
Rotich had submitted that the Cabinet directive dated 21 August 2009 for implementation of Arror Dam confirmed that the project had prior planning.
The prosecution alleged that a concept paper involving seven dam projects among them Kimwarer and Arror multi-purpose dams were sent to Cabinet for approval was a rip-off plan.
“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,” reads court documents.
However, on Tuesday the former CS appeared to remain the only top state official set to take to the dock as the DPP seeks to push for a conviction of the big fish in his anti-grant fight.
Rotich, Thugge and Koech were accused of conspiring to defraud the state concerning the construction of Kimwarer Dam by entering into an agreement disguising it as a government-to-government loan.
The charges dropped against Thugge include one count of conspiracy to defraud, willful failure to comply with applicable laws relating to procurement, one count of engaging in a project without prior planning, 10 counts of abuse of office and one count of committing an offence of financial misconduct.
Rotich, Thugge, PS Susan Koech and Kennedy Nyakundi (chief economist, head of Europe II division) were charged with another count of conspiring to defraud in relation to the construction the of Kimwarer Dam.
The Italian government allegedly guaranteed the loan and the suspects allegedly committed the offence between December 17, 2014, and September 27, 2018.
On a second count, they were accused of failing to follow procurement procedures and another count of irregular procurement of an insurance policy through single-sourcing.
On her part, Koech had only three counts against her which were conspiracy to defraud, willful failure to comply with applicable law relating to procurement and engaging in a project without prior planning.
On Tuesday, the DPP asked the court to allow them 30 days to be able to produce 18 Italians who were charged alongside Rotich but have never appeared in court.
The Italians who are directors of the CMC Di Ravena Company that is at the centre of the scandal have never appeared in court to take a plea.
Richard Mabele who is said to be the Kenyan director at CMC di Ravena filed a case at the High Court challenging his prosecution.
But the prosecution wants Mabele and the Italians charged with the same offences that Rotich was arraigned for.
In response to his application, the DPP told the court at the time that Mabele alongside Rotich, Thugge and Koech planned to steal over Sh80 billion through the Kimwarer dams project.
According to court papers, the DPP claimed that the Sh80 billion that the 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.
Muteti, for the DPP, told Ogoti that they have contacted the Italian government in a bid to have the Italians brought to Kenya.
"Italy was the most hit by Covid-19 we were not able to process the matter against the appearance of number 8 to 26, we have placed legal assistance with the government of Italy to help with the suspects, " Muteti said.
The case will be mentioned on February 15.