Why former PS, City Council clerk were jailed over cemetery land

A former Local Government permanent secretary and former Nairobi City Council (NCC) clerk have been jailed for their role in the Sh283 million cemetery land scandal.

Sammy Kirui and John Gakuo were sentenced to three years in jail and fined Sh1 million each for abuse of office and failure to comply with procurement rules in purchasing the land.

They were convicted for their role in the multi-million shilling scandal that rocked City Hall between 2008 and 2009.

Mary Ngethe, who at the time was the city council’s legal director and chairperson of the tender evaluation committee, was also sentenced to three years in jail and fined Sh52 million while the committee's secretary, Alexander Musee, got three years and a Sh32 million fine.

Anti-Corruption Court Chief Magistrate Douglas Ogoti ruled that whereas Mr Kirui and Mr Gakuo acted passively and allowed embezzlement of public funds to take place under their watch, Ms Ngethe and Mr Musee served as corruption conduits in the deal.

“I find that the prosecution has proved the case beyond any reasonable doubt. It is the accused persons who know why they acted the way they did, leading to loss of public funds. I find them guilty of each of the offences they are charged with and convict them accordingly,” ruled Mr Ogoti.

Dramatic end

The sentencing marked a dramatic end for the four, who have been out on bail for the six years of the trial but who were escorted out of court to be handed over to prison authorities to begin their new life behind bars.

The judgement came as a nightmare for Gakuo, a man who was once one of the most powerful faces at City Hall.

The convicts' lawyers said they would appeal against the sentencing.

Kirui was accused of abuse of office in December 2008 for authorising payment to Naen Rech Ltd for the cemetery land in Mavoko and in so doing, ignoring concerns raised by the City Council’s Planning Department on the land’s suitability.

Gakuo faced the charge of willfully failing to comply with procurement rules by refusing to terminate the contract with Naen Rech Ltd even after he was informed of the unsuitability of the land being offered.

“Kirui and Gakuo knew the procurement process for the land was flawed, the law required them to terminate the process as soon as the information came to their attention but they chose not to act thereby aiding in defrauding public funds,” said Ogoti.

Illegal payment

According to the magistrate, the two voluntarily caused the illegal payment to the company selling the land despite having the authority to halt the flawed tender.

He added that Gakuo was at the centre of the entire process but did not stop it, and ruled that the former city clerk's correspondence with the former PS was a deliberate cover up to defraud the Sh283 million.

“What they did was like a cover-up game. When issues were raised about the land’s suitability, Kirui said he informed Gakuo to look into the concerns raised after which he decided to be passive as public money was being lost,” said Ogoti.

Ngethe and Musee were accused of knowingly giving a misleading report that the tender evaluation committee had approved the contract, which resulted in the city council paying the amount for unsuitable land.

Ngethe was additionally charged with giving a false evaluation report to the city council, which earned her another three years in jail that will run concurrently with the sentence for the first charge.

In the event that Ngethe and Musee fail to pay the Sh52 million and Sh32 million fines respectively, they will serve another one year in jail.

Confer benefit

“Their conduct demonstrated that they colluded to confer a benefit to themselves and to others," said Ogoti in his ruling.

"It amounted to criminal conduct when Ngethe received Sh13 million while Sh18 million found its way into Musee’s account in unclear circumstances.”

The four join former NCC procurement officer Boniface Okerosi and land surveyor Cephas Kamande, who are serving two years in jail for failing to raise a Sh77 million fine for their role in the irregular purchase of the cemetery land.