A key prosecution witness in a corruption case facing former and current Kenya Power (KP) managers has confessed he was directed to undertake selective investigations.
In the case, former KP managing directors Ken Tarus and Ben Chumo, and nine senior managers were arraigned in connection with procurement of substandard transformers worth over Sh409 million.
Mr Linus Ndegwa, from the Public Procurement Regulatory Authority, also admitted he was not supplied with all the necessary documents to carry out thorough investigations.
He also told court yesterday he never contacted accused persons to get their side of the story.
Ndegwa was engaged by the Directorate of Criminal Investigations to help probe claims of spending on faulty transformers against several former and current KP bosses.
But the first prosecution witness gave testimony that casts doubts on the thoroughness of investigations.
His admission that although six firms participated in the tender, DCI officers asked him to only focus on one company that was subsequently charged, shows just how corruption cases are mismanaged.
Ndegwa said he neither asked for documents from KP nor the implicated firm. He did not also seek their side of story when authoring a damning report that formed the basis for prosecuting the officials.
He said he only relied on documents supplied by the DCI in their offices from where he prepared the report.
The witness, who was engaged for his expertise in procurement matters, said if he had been given all the necessary documents, he would probably have come to a different conclusion.
Ndegwa, an official from an agency mandated to monitor, assess and review public procurement and asset disposal system in government, also admitted he never followed rules governing such an investigation.
The witness also told court KP should have bought the transformers at the prevailing exchange rate of Sh84 against the dollar instead of Sh83.
Among the documents he said he was not given, in the course of the probe, were advertisement for the tenders and requisition forms.
Ndegwa admitted he flouted the law by asking the DCI, headed by Mr George Kinoti, to give him the documents he needed instead of demanding the information from Kenya Power and implicated companies.
According to the law, the authority ought to have asked Kenya Power and the bidders to give their documents for investigations and not DCI.
The witness said he had asked a Mr Nyawida, who was the lead investigator, to produce advertisements which showed Kenya Power had advertised for the controversial tender but he did not get a reply.
“DCI was not the procuring entity and did not participate in the tender,” said Ndegwa.
He told the court there were quite a number of documents which were not produced to help scrutinise the entire procurement and supply chain.
The witness, however, told Milimani court magistrate Felix Kombo the authority was not investigating the power company hence was not obliged to follow investigations rules.
“Your evidence yesterday was that you were investigating. Under what law did you investigate?” defence lawyer Migos Ogamba said.
“The request by DCI was we were to offer provisional advice and technical assistance,” Ndegwa replied.
He admitted the assistance he was offering was supposed to be guided by the Act of Parliament that established the authority.
DCI wrote to the authority on July 6 seeking help in investigations of the tender.
The letter indicated DCI wanted the authority to help in scrutinising the tender documents.
Three days later, the agency wrote another letter asking for technical staff to look into the whole process.
Ndegwa’s report read it was an investigation but he told court the document was an analysis.
“When we were doing all those activities, they were an analysis. We were analysing documents which were to be used in an investigation,” he said.
He said the authority’s culture is that it does not change the headings of requests in its report.
The defence produced, before court, adverts in the local dailies to show the power firm first advertised for bidders to express their interest.
Defence lawyers then took the witness through contents of adverts which he said met the set standards.
He was required to explain a report in which he claimed there were no adverts in two national newspapers.
“If you had the advertisements in the file, would your conclusion be the same?” said the defence team.
His reply was “No”
He was also shown minutes of a meeting which indicated six companies got the tender.
The witnesses admitted he only zeroed in on one company before making the damning report.
“The reason we looked at Muwa Trading Company Limited, as we were carrying out this analysis, is the investigating officer told us they wanted to find out whether Muwa’s contract was terminated as required. DCI did not give us a go ahead to look at the other companies,” the court heard.
“They advised you not to look at the other companies?” said Migos.
“Yes,” he replied.
The witness said Kenya Power could not have terminated a tender it never awarded.
In his report, Ndegwa said the tender was awarded beyond the validity period of 90 days.
He was required to explain whether Kenya Power had extended the period.
Ndegwa said he tried to find out. He testified that there was no document presented to him.
The officer also wrote, in his report, that Kenya Power did not report the tender to his authority within 14 days as required as it was above Sh5 million.
After he was shown the law which details that the reports ought to be quarterly, he went quiet, then mumbled and urged the lawyer to move on to avoid answering.
“Do you understand whether the report is supposed to be reported within 14 days of the award or 14 days of every quarter?” said Migos.
“In my understanding, this is for quarterly report. If you look at aaaa, eeeeh… ,” he replied.
“If you don’t get it, say we move on,” Migos said. “Okay lets move on,” he replied.
Asked how he knew KP did not give its report to the authority, he first said DCI did not give him the information.
“When we did not get it from DCI, we checked from our end, in our files,” he replied.
Ndegwa said he had asked an intern, instead of the person in-charge, to give him the file from Kenya Power.
The court heard the intern verbally told him she could not get it.
He also said he could not remember who the intern was but asserted his final product was credible.
“The report ought to have come from the DCI,” he said.
He recommended the then accounting officer should be held responsible but admitted he never bothered to verify who it was.
It emerged Ndegwa never gave out names of any suspects who were to be charged.
The witness was also taken to task over his knowledge about technical parameters set for bidders.
He wrote in the report that the technical evaluation parameters were not measurable but admitted he had no knowledge on how transformers ought to operate.
Ndegwa said he got information on the firms in an addendum which was not produced in court.
And the court session was not without light moments thanks to a knife that had been left in the witness box.
“There was a weapon here. I was thinking it had been removed but it is still here and a sack labelled Mombasa cement. The knife can be easily used as the matter we are dealing with is pretty serious,” Ndegwa said.
The magistrate replied, “This is a High Court which deals with murder. That is an exhibit and it is pretty safe.”
He was also asked how he got involved in the investigations.
Ndegwa said he was nominated by the Director General of the authority, but admitted there was no terms of reference.
Lawyer Kirathe Wandugi told the witness that although the DCI’s letter did not spell out which firm they were investigating; he was eventually told to scale down to Muwa.
In his reply, he said DCI’s lead investigator orally told him to focus on Muwa.