GRAFT WAR

Inside Kenya's slow wheel of justice on corruption cases

Some defendants file multiple preliminary objections thus delaying the substance of the cases.

In Summary

• While Kenyans are yet to see whether the grind will be fine, the wheel of justice appears to turn extremely slowly on corruption cases.

• Using the daily updates provided by the Judiciary this year alone, the Star looks at the pace of cases of corruption currently before the courts.

Milimani Law Courts
Milimani Law Courts
Image: FILE

"The wheels of justice turn slowly but grind exceedingly fine" is often used to justify lengthy periods that cases drag in court and then favourable verdicts are achieved.

While Kenyans are yet to see whether the grind will be fine, the wheel appears to turn extremely slowly on corruption cases.

The Kenyan courts today are handling multiple corruption cases involving hundreds of suspects.

 
 
 
 

There has been unending blame-game with the Executive - the source of most of the corruption cases - accusing the Judiciary of taking too long on the cases.

On the other hand, the Judiciary has blamed the Directorate of Criminal Investigations of at times being poorly prepared for cases where people are already arraigned.

But why is it that the wheel of justice appears to turn extremely slowly in the Kenyan courts?

Using the daily updates provided by the Judiciary this year alone, the Star looks at the pace of cases of corruption currently before the courts.

This analysis reveals that some are delayed by multiple adjournments while others by the absence of either the prosecution, defence or witnesses. 

In some instance, some defence teams file multiple preliminary objections thus delaying the substance of the cases.

In other cases, accused persons file appeals in higher courts on the preliminary objections ruling thus causing adjournments in the lower courts. 

 
 
 
 

It is now seven months since graft accusations shook a central pillar of President Uhuru Kenyatta's administration - The National Treasury.

Treasury CS Henry Rotich and PS Kamau Thugge in court on July 13, 2019.
Treasury CS Henry Rotich and PS Kamau Thugge in court on July 13, 2019.
Image: ENOS TECHE

Arror and Kimwarer Dams

Former Treasury Cabinet Secretary Henry Rotich and his Principal Secretary Kamau Thugge were arraigned on July 23, 2019, for what is now known as the Arror and Kimwarer scandal. 

In November last year, the two took a fresh plea on corruption charges alongside five other co-accused in the Arror and Kimwarer dams case.

Others who took a fresh plea were former PS Susan Koech, former KVDA boss David Kimosop and former Treasury officials Kennedy Nyachiro, Jackson Njau and Titus Muriithi. 

However, Richard Malebe - an alleged CMC di Ravenna Kenyan director - and 18 other Italian directors were not present to take a plea as expected. 

This year, the suspects have appeared for a mention only once on January 14 when Chief Magistrate Douglas Ogoti directed that the directors of the Italian firm appear in court on February 24 to take a plea.

On Monday, the case before the Magistrates Court was halted following an order from the High Court. by one of the suspects to not take a plea. 

The case will now come up for a mention on March 26.

Kenya Pipeline Company

On December 13, 2018, former Kenya Pipeline Company Managing Director Charles Tanui and seven others were charged with conspiracy to defraud the company of  Sh644 million.

The other accused are Philip Kimelu, Bramwel Juma, Charles Maitai, Charles Ouko, Fredrick Kagoshi, Francis Obure, Beryl Aluoch and Aero Dispenser Valves Limited.

The latest on this case is that they appeared in court on January 14, 15 and 16 where two witnessed testified on each of those days.

Nairobi Governor Mike Sonko at the Milimani Law court on December 9, 2019.
Nairobi Governor Mike Sonko at the Milimani Law court on December 9, 2019.
Image: EZEKIEL AMING'A

Mike Sonko

The case against Nairobi Governor Mike Sonko is probably one that can best illustrate how both the prosecution and the defence can slow down the wheel of justice.

Sonko took a plea on December 9, 2019, having been accused of fraud alongside several other City Hall officials.

The DPP presented two charge sheets against Sonko. In the first file, he was accused of embezzling county funds to the tune of Sh24.1 million. 

In the second sheet were charges of economic crimes, abuse of office, unlawful acquisition of property and irregular payments that saw the county lose Sh357 million.

On February 18, Sonko took a fresh plea after the prosecution amended the charges reducing the number of the accused in the first file.

In the new charge sheet, the names of his co-accused Danson Muchemi, Zablon Onyango, Webtribe Limited and Robert Mureithi were dropped.

The four who are now facing the charges are Sonko, Fredrick Odhiambo, alias Fred Oyugi, ROG Security Limited and Antony Ombok, alias Jamal.

Regarding the Sh357 million file, lawyer Cecil Miller, acting for Sonko, accused the prosecution of delaying the case by not providing the defence with witness statements.

The court had directed they be served with the documents within 14 days which expired on February 10.

This is a common accusation from defence teams with the prosecution being put on the spot by both the defendants and the courts.

Magistrate Douglas Ogoti directed that the prosecution serves the defence with all the documentary evidence it requires with the case coming up for a pre-trial hearing on February 26.

On that day, Ogoti will also deliver a ruling on whether the prosecution of Sonko will go on following his petition that the evidence being used in the case was obtained illegally.

But this is not the only issue that has been delaying the case against Sonko and his co-accused. 

On February 16, the High Court judge Mumbi Ngugi declined to issue any orders stopping the Sh357 million graft proceedings.

However, this case in the High Court whose next hearing is set for March 25 could ultimately affect the proceedings in the lower court as it touches on the investigations.

Sonko, in an amended petition, wants the matter referred to Chief Justice David Maraga to empanel a bench of an uneven number of judges to hear and determine the case.

Former Nairobi Governor Evans Kidero at a Milimani court during the hearing of his abuse of office case alongside other individuals.
Former Nairobi Governor Evans Kidero at a Milimani court during the hearing of his abuse of office case alongside other individuals.
Image: FILE

Evans Kidero

Another high profile case that seems to have more than one turns is facing former Nairobi Governor Evans Kidero and Nyakachh MP Aduma Owuor.

Nine months ago, Kidero was arrested by EACC officials over irregular payment of Sh68 million by Nairobi County Government.

On January 21, before Magistrate Douglas Ogoti, Kidero declined to plead afresh to the conspiracy charges to which he had already pleaded not guilty.

His lawyer Julie Soweto said the prosecution is yet to serve them with the fresh charge sheet and there is a dire need for change at the Office of the Director of Public Prosecutions.

Immediately after Soweto raised her objections, Ogoti asked prosecutor James Kihara, “Do you have a problem supplying the accused with documents as they come for plea?"

“No,” Kihara said.

“So how do we deal with this impending issue because we are being blamed for delaying this case because of the disclosure. Is there an issue with your office or the investigative agencies?”

“Your Honour, I have the charge sheets with me. The investigating officer can serve the accused persons right this minute so that the plea can proceed,” Kihara said.

After the prosecutor saw the court was not moving, he said he needed time to consult with his colleagues on the way forward.

On February 17, the court heard an application from Kidero seeking to stop the taking of pleas on the amended charge sheet.

Ogoti said he would give a ruling on the matter on March 19.

In October last year, Kidero also told the court that he wants a petition he filed the previous month challenging the criminal proceedings instituted against him in the Sh68 million graft case referred to Chief Justice David Maraga.

In November, his lawyer Nelson Havi accused the Judiciary of delaying the matter citing the absence of Justice Mumbi Ngugi who was on leave.

Justice John Onyiengo dismissed the application seeking a bench of an uneven number of judges on January 29 and set February 26 as a mention date for further direction.

Kidero has also challenged another 2018 case where he is charged alongside eight others for conspiring to commit fraud, leading to the loss of Sh213 million at City Hall. 

The matter came up for hearing on January 23 with the final submissions from both parties being made on February 18. 

Justice Mumbi Ngugi directed that the parties appear in court on April 29, 2020, when she will deliver her judgement on the matter.

Former NHIF CEO Geoffrey Mwangi (R) and finance director Wilbert Kurgat at the Milimani law court on Monday, November 26, 2018.
Former NHIF CEO Geoffrey Mwangi (R) and finance director Wilbert Kurgat at the Milimani law court on Monday, November 26, 2018.
Image: FILE

National Hospital Insurance Fund

One corruption case that has taken years is the Sh116 million fraud at the National Hospital Insurance Fund.

The six defendants include former NHIF boss Richard Langat and the case is before Chief Magistrate Lawrence Mugambi.

The other accused are Marwa Fadhili Chacha, David Chingi, Peter Ngunjiri Wambugu, Ndiba Wairioko and Meridian Medical Centre Limited

The case has been heard four times this year - January 17, January 28, January 29, February 3 and February 4.

The next court date is March 2 when the re-examination of the investigating officer will continue.

There is another case on NHIF that started more than one year ago.

On December 7, 2018, former NHIF CEO Simeon ole Kirgotty and two others were been arrested for the procurement an integrated revenue collection system for Sh49.5 million without planning.

Kirgotty was arrested alongside Gilbert Gathuo (Head of ICT) and Robert Mureithi (head of Webtribe).

The number of persons charged in the case is 21 including former CEO Geoffrey Mwangi, General Manager Finances and Investment Ruth Makallah and Manager Legal Affairs Pamela Nyaboke.

There is also Fredrick Sagwe Onyancha the receptionist alleged to have bought 8 houses worth Sh20 million each was also charged for allegedly failing to comply with laws relating to procurement.

The suspects have been in court twice this year for mentions before Milimani senior principal magistrate Victor Wakumile.

They appeared on January 21 and February 13 when the hearing date was set for March 30.

Former PS Lillian Omollo and other NYS II suspects in court.
Former PS Lillian Omollo and other NYS II suspects in court.
Image: FILE

NYS II

Another matter of interest is NYS II which involves former PS Lillian Omollo and former NYS director-general Richard Ndubai.

Omollo and Ndubai were charged alongside 52 others over the alleged loss of money at the NYS.

This year, the courts have handled issues of frozen assets more than the main cases.

The complexity of the NYS cases which were divided among three magistrates makes it hard for the public to follow.

Each court is handling one file after the cases were consolidated.

One involves the Ngirita family where they are charged with occasioning the loss of Sh468 million at NYS.

Omollo and former NYS Director-General Richard Ndubai have two other cases pending before different courts.

They concern payment of Sh167.7 million to three companies — Firstling Limited, Kunjiwa Enterprises and Ameritrade Limited — and Sh226.9 million to companies related to the Ngirita family.

In 2019, the hearing of the NYS II case was adjourned for twice in one week after the second witness failed to show up.

This year, the case before Magistrate Peter Ooko has been heard twice on January 30 and February 6 where one witness testified on each of the days.

After consultations, the 18 advocates in the case agreed on the availability of the next date in court which will not be June 15, 2020.

Rebecca Nabutola

Another case that has taken years to resolve is an appeal by former Tourism PS Rebecca Nabutola which is now before Justice Mumbi Ngugi.

In May 2016, Justice Ngenye Macharia upheld the ruling that the Nabutola and the late KTB managing director Achieng' Ong'ong'a were guilty of conspiracy to defraud the ministry Sh8.9 million.

In the ongoing case which was possible following a decision to allow her to amend her appeal, the court has this year heard it twice - January 16 and January 17.

The next hearing dates are March 26 and 27 for defence submissions.

Lawyer James Orengo consults with Governor Sospeter Ojaamong at a Milimani anti-corruption court.
Lawyer James Orengo consults with Governor Sospeter Ojaamong at a Milimani anti-corruption court.
Image: FILE

Sospeter Ojaamong

On July 6, 2018, Busia Governor Sospeter Ojaamong and three of his cabinet members have been released on Sh1 million cash bail each in the case of the alleged theft of Sh20 million county money.

This year has seen the cross-examination of the investigating officer on January 23 and February 4 - another witness also testified.

Hearings in the case were also held on February 20 when another witness testified before adjourning until March 5.

As this happens before Chief Magistrate Douglas Ogoti, the governor has an appeal ongoing before Justice Mumbi Ngugi.

He is seeking to stop production of new evidence by the prosecution though the matter was adjourned on January 27 with his lawyer saying he did not have instructions to represent him.

On February 19, a hearing was conducted and Justice Ngugi said that she would deliver her judgment on the petition on March 18.

Ferdinand Masha with his Wife former Kasarani MP Elizabeth Ongoro before magistrate Lawrence Mugambi to answer charges with conspiracy to commit fraud on November 4,2019.
Ferdinand Masha with his Wife former Kasarani MP Elizabeth Ongoro before magistrate Lawrence Mugambi to answer charges with conspiracy to commit fraud on November 4,2019.
Image: ENOS TECHE

Kasarani CDF

In October last year, ten people including former Kasarani MP Elizabeth Ongoro, Her husband and CDF officials were charged with embezzlement of Sh48 million public funds meant for construction of the Kasarani Girl's High School.

The officials are Silvan Thomas, Pamela Achola, Jecinta Akoth, Nashon Okumu, Kefa Omanga, Douglas Ntaine, Peter Otingo and Vitalis Ogingo Obunga.

Magistrate Lawrence Mugambi has issued seven arrest warrants in the case after some of the suspects failed to show up.

The latest one was on January 15, against Ongoro's husband Ferdinand Masha Kenga for failing to attend court in the case.

On January 20, there was a hearing on the arrest warrant which was lifted upon the provision of medical records by the defence.

On February 12, a pre-trial conference was held and will continue on March 6.

Muhammad Swazuri

On April 17, 2019, Former National Land Commission chairman Muhammad Swazuri and 23 others were arrested over allegations of irregular land compensation.

In May 2019, Swazuri was handed a temporary reprieve after Justice Mumbi Ngugi reviewed his bail terms from Sh12 million to Sh7 million.

On February 5, one witness testified against Swazuri before Magistrate Lawrence Mugambi with the next hearing date set for February 24.

Samburu Governor Moses Lenolkulal at a Milimani court on Tuesday, April 2, 2019
Samburu Governor Moses Lenolkulal at a Milimani court on Tuesday, April 2, 2019
Image: FILE

Moses Lenolkulal

The case against Samburu Governor Moses Lenolkulal and 10 others in the Sh84,6 million alleged corruption only kicked off this month despite taking a plea in April 2019.

There have been various preliminary matters including the DPP's attempt to have the governor's bail cancelled for reshuffling his cabinet. 

Magistrate Thomas Nzioka, however, dismissed the application with the case set to start on February 11.

The trial did not take off as February 11 was declared a public holiday for Kenyans to mourn former President Daniel Arap Moi.

On February 13, the prosecution called its first of the 42 witnesses the DPP has lined-up to testify against the governor and his co-accused.

The court has since held hearings on February 18, 19 and 20 with the next hearing being cross-examination of the first witness on February 25.

Following the hearing on February 25, the next date on the case is March 18.

Impeached Governor Ferdinand Waititu at a court hearing in January 2020.
Impeached Governor Ferdinand Waititu at a court hearing in January 2020.
Image: ENOS TECHE

Ferdinard Waititu

Former Kiambu Governor Ferdinard Waititu's case is also one of great interest for Kenyans especially after his removal from office through impeachment.

The court heard submissions an application by Waititu to have two witnesses removed, before Magistrate Thomas Nzioka on January 20 and January 30.

On February 4, the court dismissed the application with a hearing set on February 6 adjourned as one accused person was absent attending a traffic court case in Makadara.

Further hearing dates were set as April 28 to 3o.