Why ex-KPC bosses won’t be charged over sale of houses

Joshua Okungu                      PHOTO: COURTESY

By WAHOME THUKU

Kenya: George Joshua Okungu was the managing director of Kenya Pipeline Company (KPC), a parastatal. Mary Kiptui was the Company Secretary.

In 2007 and 2008, the two were implicated in corruption involving the sale of KPC residential houses.

In February 2008, they were arrested by officers of the Kenya Anti-Corruption Commission (KACC) and charged before the Anti-Corruption Court in Nairobi with various counts of failing to follow the law in the sale of the houses.

The company had during its 181st meeting on August 2, 2005 resolved to sell its non-core assets, including residential houses, to staff, the National Security Intelligence Services (NSIS) staff and other arms of the government.

On September 27, 2005 Okungu wrote to the Energy and Finance ministries attaching a list of properties he requested for approval to dispose.

The KPC in its 2006/2007 budget,  provided for sale of the houses.

There after, the sale was discussed in various meetings of the company board of directors. Those who attended or were represented in the meetings included the then Energy PS Patrick Nyoike and the Attorney General Amos Wako.

In mid-2007, the sale of some houses became the subject of investigation by KACC. KACC was in January 2009 given a greenlight by the AG to charge the two with corruption.

After being charged in court, Okungu and Kiptui filed petitions at the High Court to stop the prosecution on the ground that it was a violation of their constitutional rights.

The two argued that the disposal of the houses had been properly approved by Treasury and the Energy ministry. On February 27, 2007, the then Finance PS Joseph Kinyua approved the sale of the houses to NSIS at Sh93.5 million. On March 13, 2007 Nyoike wrote to Okungu approving the same sale for the same amount.

KACC had now listed Mr Nyoike as one of the witnesses in the criminal case.

Okungu and Kiptui contended that the Energy PS, having assured them that the disposal of the houses was above board, could not be called as a witness as this would amount to violation of their right to fair trial.

They argued that the prosecution was selective, discriminatory and actuated by malice or ulterior motive. All the board members who had approved the sale should have been charged, they said.

A bigger scam

Nyoike and Wako who in person approved the sale should also have  been held liable.

The board chairman Mwanyengela Ngali, who was also lined up as a witness, had executed the transfer of one of the houses.

They claimed the matter was revisited when a bigger scam, the Sh7.6 billion Triton scandal involving the KPC hit the press.

The AG filed an objection to the petition. He argued that the decision to charge them was made following thorough investigations by KACC and was based on sufficient evidence. The offences they faced were clearly spelt out in the law.

The AG said the issues raised by the petitioners could be raised during trial as matters of evidence. The allegation that the prosecution was selective and discriminatory was unfounded. No rights of the petitioners had been violated by the respondents, the court heard.

KACC argued that no constitutional issues had been framed by the magistrate court for determination by the High Court, hence the petition was in violation of the legal process.

The anti-corruption body said it received a complaint from the Kenya Petroleum Oil Workers Union that some KPC staff houses were being sold without following the legal procedures.

The investigations had not disclosed any offence against the board chairman Ngali or Mwawasi Mwangoka, an employee of KPC, the commission said. And there was no connection between the charges against Okungu and the Sh7.6 billion Triton scandal. The petition, KACC added, was aimed at frustrating the proceedings before the criminal court. The petitioners were using the constitutional court to determine issues that were before a competent trial court.

Presiding judges Weldon Korir and George Odunga pointed out that just because the facts in a criminal case may be basis for civil suit is not a ground to stop the criminal proceedings.

The judges held that a trial court was in better position to determine whether facts and evidence constituted an existing offence. Article 50(2) only provided that one could not be convicted of an act or omission which was not an offence.

The trial court was not expected to investigate and determine the merits of a criminal case. Whether a case was bound to fail or whether the accused had a good defence should be dealt with by the trial court.

Accomplices

“The petitioner is not expected to turn these proceedings into a criminal trial,” the judges held.

Further the court held that if the KPC board had approved the sale, that would be a ground on which to challenge the criminal proceedings.

The AG (and now the Director of Public Prosecutions) had the discretion to determine on whom to prefer charges and even to call some accomplices as witnesses.

The court ruled that although the discretion by the DPP to prosecute  criminal offences could not be interfered with, it had to be properly exercised.

“Where the court finds that the discretion is being abused or used to achieve some collateral purposes, the court will not hesitate to bring such proceedings to a halt.

The judges pointed out that the discretion now given to the DPP was not absolute as provided by the Constitution and the Office of the DPP Act.

“Where the prosecution has been commenced or is being conducted in an arbitrary, discriminatory and selective manner which cannot be justified, that conduct would amount to an abuse of the legal process.”

They judges added: “Similarly, where the prosecution strategy adopted is meant to selectively secure conviction against the petitioner by ensuring that certain individuals from whom the petitioner derived his decision-making power are unjustifiably shielded therefrom, it’s our considered view that such prosecution will not pass the constitutional or statutory tests.”

The judges said instituting criminal charges against Okungu and Kiptui and making the persons who had authorised the sale to become prosecution witnesses amounted to selective and discriminatory exercise of discretion.

Among others, the court declared that the selective, arbitrary and discriminatory decision to charge the two and to call the Energy PS Nyoike as witness, yet the ministry had approved the sale, offended the promotion of constitutionalism by the DPP and was an abuse of the legal process. The court then prohibited the prosecution of the two for the sale of the houses and declared the charges and the criminal proceedings unconstitutional.

After more than six years of agonising over the criminal accusations, Okungu and Kiptui were free people.