Manduku wants DCI, DDP barred from prosecuting him over corruption

Lawyer James Orengo at Mombasa High Court when he appeared for  KPA managing director Daniel Manduku in a graft-related case. [Joackim Bwana, Standard]

Kenya Ports Authority (KPA) managing director Daniel Manduku has moved to the High Court seeking orders to stop his arrest and prosecution over alleged fraud.

In the suit, Manduku has accused the Directorate of Criminal Investigations (DCI) of conducting malicious, illegal, discriminatory and selective investigations against him and a few port managers over the execution of projects authorised by Cabinet Secretaries and the state's multi-agency teams.

He also wants the DCI and Director of Public Prosecution (DPP) stopped from issuing press statements about these investigations accusing them of waging a hostile media campaign against him as if he is already guilty.

Manduku through his lawyer James Orengo has sought interim orders stopping Inspector General of Police (IG), DPP and DCI from arresting and prosecuting him.

According to documents filed in court, the DCI has pressed 22 possible charges against Manduku and two others in relation to the procurement of various port projects that are underway in Kisumu, Mombasa and Nairobi.

Besides Manduku, the DCI has recommended prosecution of Anthony Muhanji and Juma Chigulu, Mathews Ondiek Amuti, William Kimabwai Tenay, Aza Nassir Dzengo, Ali Mwinjaka, Tom Onyango Okeyo, Joseph Safarry Kingwagu.

Among the charges that have been, they face include conspiracy to defraud Sh1.4 billion through irregular issuance of purchase orders and declaration of bills of quantities for the manufacture of 17, 940 pieces of concrete barriers, abuse of office and engaging in procurement without an approved budget.

It is said that Manduku between on March 27 and August 23, 2019, KPA headquarters within Mombasa County failed to ensure that there was a procurement plan for manufacture of 17, 940 pieces of concrete barrier with a total concrete sum of Sh1, 420, 730, 727.

Manduku is said to have influenced the Head of Procurement and Suppliers Department Antony Kawamah Nyamancha to award works for the manufacture of 17, 940 pieces of concrete barriers to his preferred contractors.

The DCI investigations arose out of the KPA execution of executive and ministerial orders in regard to the revitalisation of Kisumu Port, the construction of the Makongeni shed and construction of concrete barriers for various parts in the country under the supervision of the national government.

But in an application certified urgent before Judge Eric Ogola, Orengo sought interim orders restraining the IG, DPP and DCI from arresting, arraigning in court, charging and prosecuting Manduku.

“We seek this court's conservatory orders restraining the DCI, DPP and IG from otherwise instituting criminal proceedings against Manduku on the basis of the impugned investigations and recommendations of the DPP and DCI, until this petition is heard and determined,” said Orengo.

Orengo also sought orders stopping DIC, DPP and IG from issuing any adverse, improper and inaccurate statements to the media against his client.

“An order of stay be and is hereby granted of any criminal charges and proceedings instituted against Manduku during the pendency of this application and petition until it is heard and determined,” said Orengo.

Urgent matter

Orengo said that they are not seeking to stop investigations from proceeding to its conclusion.

However, Justice Ogola declined to issue any interim orders until the application was heard inter-parties.

The judge certified the matter as urgent and directed that both parties be served and be heard on December 2.

“I have carefully considered the submissions of Orengo and I am convinced the issues raised are indeed urgent, but I will not give any interim orders until the inter-parties hearing. I, therefore, certify the motion urgent and direct all parties be served,” said Justice Ogola.

Manduku through a sworn affidavit said he has been the target of unfair, un-procedural and flawed investigations for alleged procurement-related offences and that the DIC, IG and DPP have recommended his prosecution based on impugned investigations.

He said the said works were executed by KPA in collaboration with a host of other public ministries, agencies, bodies and entities including the Ministry of National Treasury and Planning, the Ministry of Environment and Forestry and Public Works Department.

Orengo said the work was done in obedience to exigent executive and ministerial orders and in accordance with applicable laws.

“It is only KPA and a few of their staff members including Manduku that have been singled out for investigations by the DPP and DCI leaving out other government institutions involved in the procurement, planning and execution of the said works,” said Orengo.

In breach of national values

He said that the DPP and DCI had assumed the authority and mandate of the Ethics and Anti-Corruption Commission (EACC) as conferred on it by the Anti-Corruption and Economic Crimes Act 2003 by purporting to investigate corruption-related and economic crimes.

Orengo said the agencies were in breach of the national values and principles of governance for failing to adhere to the rule of law and to be accountable and transparent in the investigations and intended prosecution of Manduku.

Orengo told the court that DPP, DCI and IG have subjected him to administrative action that is unfair, inefficient and unlawful through non-disclosure of all relevant facts and denying Manduku the right to present his case.

“The DPP and DCI have mounted a scurrilous media campaign against Manduku, publicizing the investigations against him and the recommendations to charge him thus denying him the right to be presumed innocent until the contrary is proved,” said Orengo.