Court dismisses governor Wamatangi bid to strike out Sh813m EACC recovery suit

Kiambu Governor Paul Kimani Wamatangi and six others have suffered a setback after the High Court rejected bids to strike out an EACC case seeking recovery of Sh813.1 million

Justice Rose Ougo of the Milimani Anti-Corruption High Court on Friday dismissed five separate applications filed by Wamatangi and other defendants seeking to have them removed from the suit after finding that the case was not so hopeless as to warrant striking it out at the preliminary stage.

Those who had applied to be removed in the suit include Wamatangi alongside Charles Kiarie Kimani, Faith Wambui Njeri, Joseph Mwaura Kimani, Annie Murugi Njoroge, Mary Esther Njeri and Nicholas Kimani Njoroge, seeking to have them removed from the suit.

The ruling is a win for the Ethics and Anti-Corruption Commission (EACC), which the court directed to proceed with its recovery case over money allegedly linked to irregular road tenders awarded to companies associated with the county and his alleged associates.

The judge directed EACC to prosecute its case and provide sufficient evidence to support its allegations, leaving the question of personal liability to be determined after the evidence is tested at trial.

“I am inclined to disallow the Applications to strike out the 1st and 7th to 13th Defendants/Applicants at this stage, on the ground that the pleadings, as drawn, are not so hopeless as against them as to warrant striking them out,” Justice Ougo ruled.

Wamatangi had asked the court to strike out the case against him, arguing that he was not a director of the companies that received contracts from the Kenya Urban Roads Authority, Kenya Rural Roads Authority and Kenya National Highways Authority.

He also denied influencing the tenders and argued that the suit was politically motivated.

EACC, however, told the court that its investigations had established that Wamatangi, during his tenure as a senator, influenced the tender processes and awards, engaged in breach of trust, abuse of office and conflict of interest resulting in the award of contracts and receipt of a benefit amounting to Sh813,145,532.40.

The commission further alleged that investigations established that Wamatangi had registered the companies, held majority shareholding and was a signatory to their bank accounts.

EACC also told the court that he received funds directly into his Parliamentary Sacco account from the companies' bank accounts.

The Wamatangi and other defendants had also relied on the separate legal personality of companies, arguing that they could not be held personally liable merely because they were directors.

But Justice Ougo held that the allegations of fraud, misrepresentation and falsification of documents pleaded by EACC required evidence to be tested at a full hearing.

“These allegations must be substantiated by evidence and tested at the hearing,” the judge said.

The court also rejected Wamatangi's argument that parliamentary privileges protected him from the proceedings.

Justice Ougo held that the Parliamentary Powers and Privileges Act did not shield members of Parliament from allegations of unlawful conduct.

The judge further dismissed Wamatangi's argument that the EACC case was sub judice because of another constitutional petition, finding that he had failed to demonstrate that the parties and issues in the two cases were the same.