- Rotich through Senior Counsel Kioko Kilukumi told Trial Magistrate Eunice Nyutu that even the Assets and Recovery Agency (ARA) has not been able to trace and freeze any stolen money because it was all based on falsehoods.
- He said the funds allegedly branded as stolen or termed by the prosecution as improper benefits were payments—to SACE (an Italian export credit agency).
Former Treasury CS Henry Rotich has asked an anti-corruption court to acquit him saying no money was lost in the financing and development of the Arror and Kimwarer dams project.
Rotich was on July 23, 2019, arraigned and faced graft-related charges.
One of them was a conspiracy to defraud the Government of Kenya USD 501,829,769.43 (Sh 63 billion) by unlawfully initiating and entering into construction, financing, and insurance agreements for the development of Arror and Kimwarer multipurpose dam projects.
He faced this charge alongside Chief Economist Kennedy Nyakundi, Jackson Njau Kinyanjui and five others.
In his submissions before the court, Rotich through Senior Counsel Kioko Kilukumi told Trial Magistrate Eunice Nyutu that even the Assets and Recovery Agency (ARA) has not been able to trace and freeze any stolen money because it was all based on falsehoods.
He said the funds allegedly branded as stolen or termed by the prosecution as improper benefits were payments—to SACE (an Italian export credit agency) for providing insurance cover to financiers, payments to lenders for interest, payments of commitment and loan structuring fees; and payments to the contractor for mobilization to the site—all genuinely meant to facilitate implementation of the said projects.
Rotich in his capacity as Treasury CS was entitled by law to raise a loan on behalf of the government to finance the two projects.
He executed two facilities agreements dated April 18, 2017.
However, these two crucial documents were not produced as exhibits before the court.
The loans were government-to-government loans and were covered by SACE organized under the laws of the Republic of Italy, an Italian Export Credit Agency.
Rotich said the prosecution was obligated to produce evidence to prove that the insurance cover issued by SACE to the financiers was a Kenya business.
In asking the court to absolve him from any wrongdoing, Rotich said it was outrageous for the prosecution to allege that he failed to ensure the facilities agreements were lawful yet the then Attorney General Githu Muigai rendered a legal opinion to the financiers on the legality and lawfulness of these agreements.
“The narrative that money was lost or stolen was fiction. The prosecution seems to have been on a fishing expedition hoping to catch the so-called “big fish” under a public opinion court mode! If indeed money was lost as the public was led to believe, how come the Asset Recovery Agency (ARA) has not been able to trace any stolen loot and freeze it?” posed his counsel
He proceeded to tell the court that he became aware of the two projects on March 14, 2016, when he received a letter from the then Environment CS Judie Wakhungu.
Wakhungu in the letter stated;
“We also seek to request for the Government to borrow funds for the project on behalf of KVDA. The Authority will repay the loan once the project benefits accrue”.
Rotich says if there was any conspiracy, then Wakhungu would be part of the conspirators including the Principal Secretary, Treasury who dealt with the request for raising the financing.
Rotich says the Head of the Public Debt Management Office, who makes the operational decisions on borrowing and debt management, and who together with the Principal Secretary, Treasury recommended to him to execute the financing agreements would also be part of the conspirators and be presented before the court as accused persons.
For the conspiracy charge to stand, he added that the Board of Directors of the KVDA who approved the implementation of the development of the two Vision 2030 multi-purpose projects should have been charged.
“The KVDA request for the Government to borrow funds” was made to my client in his capacity as the Cabinet Secretary of the National Treasury to raise the financing of the projects through borrowing. It is our submission that the conspiracy charge was a grave misapprehension of the governing law and the facts surrounding the procurement and financing of the two (2) projects,” said his advocate.
He maintained that the prosecution failed to adduce any evidence to show that there was an agreement between the accused persons to carry out the alleged unlawful act to defraud the Government of Kenya of billions of shillings.
The prosecution in the case called 49 witnesses and closed its case on October 31, 2023.
Out of the 49 witnesses, the prosecution led evidence from eight witnesses mostly from KVDA.
The other 41 witnesses would come to court and leave without being led in their evidence.
The prosecution would always say they had no questions for them
This was the same scenario in the case of the Investigating officer who is the most crucial witness in any given case.
Kilikumi took issue with how the prosecution chose to prosecute the case terming it as a waste of judicial time.
He said the DPP had the option of either withdrawing the prosecution or closing its case at the earliest possible opportunity, without wasting scarce judicial resources.
“The DPP should never be allowed to engage in legal misadventure of this nature in the future,” he said.
He said the prosecution has not established a case against not only Rotich but all the other accused persons.
“The prosecution intentionally and deliberately abandoned its case. It was ill-advised from the onset. It was carried on the wings of extraneous political considerations. It was not mounted on the strength of evidence of criminal culpability. It was bound to fail,” said Kilukumi.
The court will deliver its ruling on December 14, on whether they have a case to answer.