•The DPP's intention to withdraw the case comes after Lenolkukal petitioned their office seeking a review of the charges saying he was taking the necessary steps to relinquish his ownership with Oryx Service Station.
•Lenolkulal was charged in 2019 at the Milimani Law court with four counts of abuse of office and conflict of interest leading to the loss of 84 million public funds.
Image: FILE
The office of the Director of Public Prosecutions (DPP) intends to withdraw the Sh84 million graft case facing former Samburu Governor Moses Lenolkulal when the matter is at its tail end.
The DPP's intention to withdraw the case comes after Lenolkukal petitioned their office seeking a review of the charges saying he was taking the necessary steps to relinquish his ownership with Oryx Service Station.
Lenolkulal was charged in 2019 at the Milimani Law court with four counts of abuse of office and conflict of interest leading to the loss of 84 million public funds.
He has been accused of using his company-Oryx service station-to supply petrol and diesel to the county.
The charge sheet indicates Lenolkulal ‘knowingly acquired direct private interests in contracts between Oryx and Samburu for the supply of fuel”.
He is facing the charges alongside Hesbon Ndathi, and nine others.
Lenolkulal in the petition to the DPP claimed correspondence from the county government of Samburu treasury department indicated there were no procurement breaches.
The department also said no money was lost under the subject in question and that they got value for money for the services they received.
The DPP was also provided with a declaration of conflict of interest by the former governor where he had disclosed that he had an interest in the fuel service station.
The last time the matter was in court, which was September 12 this year, EACC investigating Officer Joel Khisa Nyongesa told Anti-corruption Magistrate Felix Kombo that they were able to establish Lenolkulal was the owner of Oryx Service station which was used to supply petrol and diesel to the county leading to the loss of Sh84 million.
Part of his testimony revealed how they conducted searches in Lenolkulal’s home and that of Hesbon Ndathi, an accused person in the case.
They obtained a tenant agreement between the two.
The agreement revealed that Lenolkulal is the proprietor of Oryx service station in Maralal and Hesbon was the tenant.
Part of the agreement was that Oryx is fully owned by Lenolkulal but he had availed the station to be fully run by Hesbon.
“Hesbon undertook to manage the day-to-day running of the station including management of the stations and he was to provide Sh7 for every litre sold,” said the Investigating officer as he read from the document.
Nyongesa told the court that he was part of the team configured to probe the Lenolkulal graft case.
They had five objectives. One was to establish the ownership of the Oryx service station and two was to know the identity of Moses Lenolkulal to establish whether Oryx traded with the county government of Samburu.
If it indeed traded with the county, how much was involved and whether Oryx service station trading with the county government led to a conflict of interest on the part of the governor.
But owing to the new developments in the case, the DPP on Wednesday made an oral application to withdraw the case against all of the accused persons.
"This was premised on a petition made to the office," they told the court.
Trial Magistrate Thomas Nzyuki however declined to have the matter withdrawn orally.
He directed the office of the DPP to file a formal application and serve it to all the accused persons in the case.
The Ethics and Anti-Corruption Commission is also to be served. He further directed the application be heard and accompanied by a consent letter.
The Magistrate at the same time allowed an application by Lenolkulal seeking to have his passport released as he flies to Madrid, Spain on November 4.
Lenolkulal pleaded with the court to allow him to access his office to attend his studies organized by Strathmore University.
He was subsequently allowed access to his passport from 12 October to 20 November for the purposes of travelling to Spain.
In a separate Court, the DPP withdrew the Sh400 million graft charges facing former Kenya Power MD Ben Chumo and 10 others citing a lack of sufficient evidence.
The DPP withdrew the case under section 87 (a) of the Criminal Procedure Code (CPC). This case was also at its tail end.
Chumo was charged in 2018 alongside his successor Ken Tarus, Beatrice Meso, Muwa Company, its directors James Mungai and his wife Grace Wanjira among others.
But in March this year, the DPP withdrew the charges against the company and its directors who are said to be the suppliers of the alleged substandard transformers.
Prosecution counsel Alex Akula told Trial Magistrate Felix Kombo that the Investigating officer in this corruption case has to date not submitted his statement as required and has not served or provided the same to the accused persons.
The DPP then sought to amend the charges but was declined by the Trial court.
Aggrieved, the DPP sought a review at the High Court. The same was declined by Justice Esther Maina and the DPP chose not to pursue it further.
Prosecution Counsel Alex Akula subsequently informed the trial court that with the withdrawal of the review case at the High court, it would be impossible to sustain the criminal case.
He said they have written several letters to the DCI on the 18 of October 2021, 27 April 2022, 6 May 2022, and 16 May 2022 in which they had identified areas that needed to be clarified by way of further investigations but the DCI did not respond.
“Upon review of the evidence so far, on record and especially the evidence tendered and to be tendered by the remaining 4 witnesses, we find that the same is at variance with the charges and counts that the accused persons are facing,” he said.
He also said the investigating officer has to date not submitted his statement as required and has not served or provided it to the accused persons in the case.
“In the circumstances, we are seeking permission of this court to withdraw the matte under section 87a of the criminal procedure code,” said Aluka
Immediately after, Chumo in the company of his advocate Moses Kurgat told the press that it was unfortunate it has taken five years for such an outcome when it was clear there was no evidence in the case.
"It has been very costly to us. We however thank God we have come to the end of it. We were able to withstand the pressure, the humiliation and the mudslinging. These court cases can bring you and your health down. We hope nobody else will be made to go through this,” he said