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Mose told the House team that the AG did not give his legal opinion to the sale after Treasury failed to furnish the State Law Office with the crucial documents.
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Mose, quoting a letter from the Treasury, said the drafting confirms that indeed the Treasury kicked off the exit payout process.
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The Office of the Attorney General did not approve the Sh6.091 billion Telkom Kenya buyback, MPs probing the transaction heard on Wednesday.
Solicitor-General Shadrack Mose told the National Assembly’s Joint- Committee of Communication, İnformation and İnnovation and Finance and National Planning that the AG did not give a legal opinion about the transaction during the dying days of Uhuru Kenyatta’s regime.
Mose - the principal assistant of the AG in performing the duties of the Office - told the House team that the AG did not give his legal opinion to the sale after Treasury failed to furnish the State Law Office with the crucial documents.
He said among the mandatory documentation the AG’s office requested; Treasury provided some but with no dates and signatures forcing them to decline to render the required legal opinion.
The AG’s opinion is mandatory before such a high-level transaction involving billions of taxpayers’ moneys is done.
“We stated that there were various documents sent to Cabinet Secretary of Treasury and they required to have done their bit and the final authorisation in terms of giving final legal opinion rests with the AG,” Mose told MPs.
“The last opinion that should have allowed payment to be done was the opinion of the AG, the National Treasury was required to provide us with signed and dated documents by all the parties.
We noted that the documents submitted in support of the request for the legal opinion were not complete as they were not fully signed and dated by all the parties and /or attestation was not complete.”
Mose was appearing before MPs on Wednesday to respond to questions on the role of the State Law Office in the initial acquisition of 70 per cent shareholding and subsequent offloading of 10 per cent shareholding to the government by Jamhuri Holdings Limited.
The committee also wanted to know how his office protected the strategic assets owned by Telkom Kenya while undergoing the acquisition in 2016 and buyback in 2022.
The committee is co-chaired by Molo MP Kuria Kimani (Finance) and his Dagoretti South counterpart John Kiarie (Communications).
Some of the documents State Law Office demanded before giving the legal opinion included a signed and dated Deed of Variation between the Treasury CS and Jamhuri Holdings Limited and signed Escrow Agreement between JHL, GOK and Anjarwalla & Khanna LLP.
The AG also demanded Deed of Novation relating to the Additional JHL Shareholder Loans between Telkom Kenya Limited, JHL and GOK.
Others include signed and dated Deed of Novation in respect of the loan agreement rekating to the JHL-OREA shareholder loan, a signed and dated deep of Termination, share transfer form between JHL and the Treasury CS and and the Deed of Amendment and Restatment of shareholders agreement between GoK, JHL and Helios Investors.
Treasury was also to furnish the State Law Office with additional shareholders agreement in relation to the company entered into between GoK, JHL, Helios Investors III L.P. and the Company dated June 10, 2016.
The joint team has been probing the circumstances under which the former regime under Article 223 paid Sh6 billion to Jamhuri Holdings just days to the August 9 general election.
Mose also told the committee that Treasury was the initiator of the transaction contrary to early submissions by various witnesses, including former Treasury Principal Secretary Julius Muia that the idea was first flouted by the National Security Council.
“Very many submission that we have received is that the actual initiator of this process is actually the CS of National Treasury and Planning," Kiarie said.
"To your mind Hon Mose, who is the initiator of the process or who pressed the button that set in motion the wild wind rollercoaster ride that we have been taken in the name of this transaction ostensibly claimed to be a buyback of Telkom Kenya?”
Mose, quoting a letter from the Treasury, said the drafting confirms that indeed the Treasury kicked off the exit payout process.
“If you look at our submissions we are very clear that the initiator from our correspondents were the National Treasury, even in the letter when it says to the NSC then where does initiation of the process starts? It start from the National Treasury,” Mose said.
Appearing before the same committee on Wednesday, former Treasury PS Julius Muia, however, defended the deal, terming it a clean transaction that was in the best interest of Kenya.
He said the Sh6.091 billion payment to buy off the 60 per cent stake by Jamhuri Holdings Limited in Telkom Kenya was lawful and in the interest of government to protect its strategic security interests.
The former PS claimed NSC initiated the process and Treasury took over the matter after receiving a letter from the Office of the President, advising that NSC had approved the exit of Helios/ Jamhuri Holdings in Telkom Kenya.