Ex-PS allowed to demand seven-year salary for unfair dismissal

Former Foreign Affairs PS Thuita Mwangi at the Millimani law courts on March 30, 2016 after he and two other were acquitted in the Tokyo embassy case. [File, Standard]

Former Foreign Affairs Permanent Secretary Thuita Mwangi has been given the greenlight to pursue compensation from the government for seven years he was kept in the cold.

Employment and Labour Relations Court judge, Bernard Manani, allowed Thuita to pursue the Attorney General to have his salary from 2016, when he was removed from office, to April 14, 2023 paid.

He was ruling in a case regarding the Sh1.6 billion Tokyo embassy land scandal in which the career civil servant was implicated but later acquitted. 

However, the judge dismissed Thuita’s claim against the Ethics and Anti-Corruption Commission (EACC) and the Director of Public Prosecution (DPP).

The former PS was employed by the government in 1988 and rose through the ranks until June 28, 2016, when he was shown the door despite being acquitted by the court.

Thuita, alongside former Deputy Director of Administration Anthony Mwaniki and former Charge D’Affairs at the Kenyan embassy in Tokyo Allan Waweru were charged at the Milimani Court before they were later acquitted.

The DPP appealed, but again, Justice Hedwig Ong’udi found that there was no evidence to support the four counts. 

In her judgment, Justice Ong’udi indicted EACC for shoddy investigations. She said the wrong persons ended up as the suspects.

In fact, the judge said that EACC’s investigating officer appeared not to know which provision of the law Thuita, Mwaniki and Waweru had violated or why they were charged in the first place.

“They did not show any evidence that the accused persons received any money in their accounts or whether Mr Mwangi purchased a piece of land out of the proceeds. They did not even confirm if the Tokyo land owner was bribed by any of the accused,” said Justice Ong’udi.

In the Labour Court, Thuita argued that he was painted in bad light, unceremoniously kicked out of the government and was not reinstated even after the acquittal.

According to him, he was a sacrificial lamb who was set aside to shed blood for sins committed by others.

He said the government ruined his long running career with unfounded allegations.

The Kenyan embassy, comprising of the chancery and the ambassador’s residence, was located on property known as 3-24-3 Yakumo, Meguro-Ku in the city of Tokyo, Japan since 1989.

Court documents read that the Government of Kenya had been paying a monthly rent of ¥4.7 million (Sh4.7 million).

Sometimes in July 2008, the Ambassador of Kenya to Japan, forwarded a proposal to Thuita recommending the purchase of a plot identified from the government of Japan and located at 4-1-5 Minami Azabu, Minato-ku, Tokyo, pending an offer from the Japanese government.

This was in line with an earlier government policy adopted in 2006 aimed at reducing long-term costs associated with rental payment.

Former Treasury PS Joseph Kinyua. [File, Standard]

Between January 15 and 16, 2009, an inspection of potential plots for purchase was conducted by a team of four officers together with the ambassador and Mwaniki. The visit to Japan would also include the inspection of similar plots in strategic places for comparison purposes.

Following the inspection, a plot measuring 1,431.28 square metres, together with the buildings was offered for sale by its owner, for ¥ 1.9 billion (approximately Sh1.6 billion).

Thuita then instructed the Kenyan embassy in Tokyo to negotiate a reduction of the purchase price.

The owner offered to sell the plot for the sum of ¥ 1.75 billion, with the offer being valid for a period of one month.

On January 26, 2009 and January 28, 2009, an advert was placed in local Tokyo newspapers, Japan Times and Daily Yomiuri, inviting interested bidders to submit expressions of interest to sell a plot to the Kenyan embassy.

The bids were to be submitted by January 30, 2009. There were allegedly no bids received by the close of that date.

On or about March 16, 2009, the PS at the Treasury informed Thuita of the Treasury’s authority for the purchase of the plot in question for Sh1.5 billion and the Kenyan embassy in Tokyo was accordingly informed of this development.

Consequently, the ambassador informed the government of Japan that the Kenya government was no longer interested in purchasing the plot offered.

Following the above sequence of events, the Public Procurement Oversight Authority on April 15, 2009, advised the Ministerial Tender Committee (“MTC”) to follow the relevant conventional procedures in the Public Procurement and Disposal Act in relation to the acquisition of the plot from the owner, one Mr Kuriyama.

On April 24, 2009, the MTC held a meeting which approved the purchase of the plot through the direct procurement method and in furtherance of this resolution a negotiation team was sent to Tokyo, Japan by the government of Kenya to negotiate the purchase price of Sh1.5 billion.

A month later, on May 25, 2009, the MTC approved the acquisition of Meguro-Ku property for ¥1.75 billion. During the MTC deliberations, the size of the property was established to be 1,431 square metres. Based on the reduction of the size of the property the government valuer returned a value of JPY 1,431,300,000 (Sh1.2 billion).  The agreement for the purchase of land and building was subsequently signed on June 30, 2009, between the owners of Meguro Ku property and Mwaniki as a representative of Kenya.

The Kenyan government paid the owners of the property the sum of ¥ 1.477.634.381, being 80 per cent of the purchase price, after which the ownership of the property was transferred. Around January, 2010 a new version of the agreement was signed by the interested party and sent to the Kenya embassy in Tokyo to be signed by the owners.

On or about March 2010, Thuita wrote to then Treasury PS Joseph Kinyua, proposing that value-for-money audits be conducted in specified Kenyan foreign missions on projects then under construction and including the purchase of residential and non-residential houses.

A value-for-money audit covering the period July 2008 to April 2010 was subsequently undertaken in May 2010 by audit officials from the Office of the Auditor-General and the Internal Audit Department of the Ministry of Finance. The Terms of Reference included to, “evaluate procedures and processes followed in the purchase of the Tokyo Embassy within value for money context.”

The audit reported, among other things, that Kenya had “secured value for money on the procurement of the chancery and ambassador’s residence in Tokyo, Japan.”

High Court judge Hedwig Ong’udi. [File, Standard]

EACC, however, wrote to the ministry informing it that it was carrying out investigations into allegations touching on the acquisition of the Kenya Mission in Japan.

Meanwhile, following the purchase of the Kenyan embassy property, the Parliamentary Departmental Committee on Defence and Foreign Relations travelled to Tokyo around July 2010 and inspected the property acquired by Kenya. It tabled it report in parliament on October 12, 2010 before it was adopted it on October 21, 2010.

The Parliamentary Committee made several findings and recommendations including a claim the government had lost close to Sh1 billion in the procurement of the embassy premises and that measures be instituted to recover money lost in the acquisition transaction.

Further, the committee also directed that necessary action be taken against the Minister for Foreign Affairs at the material time, the Permanent Secretary in the Ministry of Foreign Affairs, as well as Mwaniki and Waweru, and any other officers allegedly involved in the purchase.

The three were charged with abuse of office, conspiracy to commit fraud and willful failure to comply with procurement rules in purchasing the Kenya Embassy and Ambassador’s residence in Tokyo, Japan.

It was also alleged that they used their offices to confer 318,700,000 Japanese Yen (Sh302.7 million) to the property owner, Nobuo Kuriyama, for the purchase of the property without following procurement rules.

However, in March 2016, anti-corruption court chief magistrate Kennedy Bidali ruled that the prosecution had failed to prove the case based on the evidence submitted.