Not yet uhuru for ex-CS Rotich in Sh65b dams case as activists sue

Former Treasury CS Henry Rotich. [John Muchucha, Standard]

The collapse of the Sh65 billion Kimwarer and Arror dams case against former Treasury Cabinet Secretary Henry Rotich has come to haunt two state prosecutors.

A case has been filed before the High Court to hold Geoffrey Obiri and Oliver Mureithi personally liable for the bungled case.

Although the former minister and eight others, were acquitted the case by three human groups-Katiba Institute, Transparency International and Africa Centre for Open Governance (Africog) seeks to re-open the past for a debate on who should bear the burden.

Lawyer Dudley Ochiel filed the case on behalf of the three lobbies. He argued that Kenyans should not be forced to pay the former CS or his co-accused any compensation for malicious prosecution over the Kimwarer and Arror dams saga.

Rotich had been charged alongside Kennedy Nyakundi, Jackson Njau, David Kipchumba, William Kipkemboi, Paul Koech, Francis Chepkonga, Titus Muriithi and Geoffrey Mwangi.

“Although the public has already lost Sh65 billion, it could lose more if, despite this petition, the accused persons sue and are paid damages for malicious prosecution from the public purse,” said Ochiel.

“There is no guarantee that the ODPP, Geoffrey Obiri, or Oliver Mureithi would refund the public if the petition succeeds yet the public is sued and pays up for malicious prosecution caused by the ODPP’s reckless dereliction of duty,” he added.

Rotich was cleared of any wrongdoing last month in what Milimani Court magistrate Eunice Nyutu said was an acquittal by the prosecution.

Ochiel told The Standard that it is impossible to pursue the former CS in a criminal case over the same issue.

However, he said that it is not over for the minister as a civil case could be filed to recover the money from him and the others in the event the court agrees with his clients that the Director of Public Prosecution (DPP) failed in his job.

“We’re considering a civil case to recover the money from them,” said Ochiel.

However, Phillip Nyachoti who was one of the defense lead lawyers before the lower court told The Standard that his clients and Rotich cannot be pursued anymore in any court in Kenya unless the DPP Renson Ingonga decides to appeal the lower court's verdict.

"So long as the decision of the lower stands, no one can pursue or prove a case against our clients. They were acquitted in a criminal case which has a higher standard of proof. Unless there is an appeal by the DPP, on what basis can you prove a civil case?" Posed Nyachoti.

A senior lawyer who sought anonymity told this reporter that the lobby's case and intent to sue in a civil court should be brushed off.

In his view, the focal point of the acquittal is the DPP.

At the same time, he said, there is a possibility of Rotich and the other persons who he was charged with succeeding if they decide to pursue the DPP for malicious prosecution.

Rotich was charged alongside his then Principal Secretary Kamau Thugge.

Along the way, the criminal case against Thugge (current Central Bank of Kenya Governor) was dropped in a deal that he would testify against his former boss.

Central Bank of Kenya Governor Kamau Thugge. [Boniface Okendo, Standard]

The case quickly crumbled and turned into a circus where the prosecution pushed for Nyutu to recuse herself.

When she stayed put, the prosecutors tasked to present the case turned the drama gears by calling witnesses and stating they had no questions to ask.

Nyutu stated that out of the 49 witnesses, only eight testified and were cross-examined by the defense team.

In addition, she observed that 41 prosecution witnesses only took the witness stand but the prosecution opted not to ask questions.

The magistrate said that since the DPP failed to do his work, she had no option but to acquit the accused.

In the High Court, Ochiel stated that the two prosecutors told the magistrate that they failed to call witnesses because of “firm instructions not to proceed with the case.”

On the flip side, he said in the case that Kenyans lost Sh63 billion and the criminal trial, therefore, the two prosecutors should be held accountable.

According to the lawyer, the prosecutors' actions were against good governance.

“Limiting the prosecutorial immunity would at least serve a symbolic function, however; it would show that prosecutors are not entirely above the law that holds other mortals financially accountable for their intentional misdeeds in public office,” he said.

In the case filed before Justice Chacha Mwita, the three lobbies have cited Obiri and Murethi as respondents and the Law Society of Kenya (LSK) as an interested party.

They want the court to declare that the DPP, Obiri and Mureithi violated the Constitution by willful dereliction of their duty and lack of independence in the Kimwarer and Arror case.

Katiba, IT, and Africog are also seeking an order that Obiri and Mureithi role in the bungling of the case should be recorded and considered in the event they want to seek any state office.

They also want the court to find that the two prosecutors should not enjoy immunity of their office if Rotich or any other persons who had been charged filed a case seeking compensation for malicious prosecution.

Before the lower court, Nyachoti argued that the witnesses called did not come close to name or place a finger on all persons who were charged as the plotters and beneficiaries of the Kimwarer loot.

He said that curiously, all the witnesses presented by the State indicated that they did not know the accused persons prior to the case.

In court papers, Rotich said he was isolated for the hang. Despite his long career as an economist the former CS claimed that he was the sacrificial lamb in the dams saga.

A section of Kimwarer dam in Keiyo South, in Elgeyo Marakwet County. [Peter Ochieng, Standard]

In his papers filed by lawyer Kamunya Ng’arua, the former CS alleged that despite his then Environment counterpart Judy Wakhungu requesting the Treasury to borrow funds to finance the two projects and Kerio Valley Development Agency (KVDA) directors approving them, they went scot-free and he was left to shoulder the burden.

Rotich asserted that he had no role in the procurement process and had no powers to direct the Environment Ministry or KVDA.

The former minister stated that the Ethics and Anti-Corruption Commission (EACC) was aware of Wakhungu’s letter dated March 14.

The letter, he said, allegedly informed Treasury that KVDA directors had approved Kimwarer and Arror dams’ development, had procured and identified a contractor.

The two being Vision 2030 projects, he claimed, the former CS requested Treasury to review the proposed financing and borrow funds to finance the projects.

The former minister said it passed through the Cabinet, which was headed by former President Uhuru Kenyatta. He accused the State of hounding him for merely undertaking a statutory duty as requested by a Cabinet colleague.

He further said that the Treasury reportedly borrowed Sh63 billion for the dams. The lucrative tender was awarded to Italian firm CMC Di Ravena.

The two projects were to inject at least 80 megawatts of electricity to the national grid and benefit more than 6,000 residents by providing water for domestic use and irrigation.

On the other hand, CMC filed a separate case on the same project. It accused two government agencies of failing to secure the land where the two dams were to be constructed.

The firm said KVDA and the National Lands Commission (NLC) ought to answer for the failed projects.

“The KVDA and NLC materially impeded the progress of Arror and Kimwarer dam projects by failing to acquire the necessary land, rendering onsite work impossible. It was therefore impossible to accomplish the work on dam sites which did not exist as secured acquisitions, with inhabitants who were not relocated, forests which were not cleared and which they did not have access to,” the argument filed by CMC’s lawyers Coulson Harney read.

CMC said KVDA had on several occasions asked the Kenya Forest Service (KFS) to clear the area for construction to begin.

However, it claimed Kenya Forest S told the agency to look for alternative land instead of chopping down trees on the site.

Henry Rotich was cleared of any wrongdoing last month. [iStockphoto]

CMC also claimed it was ready to work on-site, but KVDA had not compensated residents whose parcels of land were to be hived off. To date, the firm states KVDA has not bought the land to allow construction.

On the other hand, the DPP said that he opted to press charges against Rotich as the money was paid to a ghost company. He said that CMC Di Ravenna’s names allegedly changed three times.

The DPP argued that based on investigations, lack of documentation on how the tendering process was done and the NLC and KFS not being involved, taxpayers were being bound into a deal to fund a nonexistent project.

In a 578-page reply to Rotich’s case, the DPP argued that while the bidder was CMC Ravenna-Societa Cooperativa, incorporated in Italy, the firm which was awarded the tender was CMC Di Ravenna and Aecom South Africa.

He claimed that although the firm which was issued with the letter of award was CMC Di Ravenna South Africa and the contract was signed by a joint venture of CMC Di Ravenna and Itenera JV Kenya Branch while payments were made to the CMC Di Ravenna-Itinera JV at Intesa Sanpaolo SPA Bank in London.

The DPP argued that at the time the contracts were executed, CMC Di Ravenna-Itenera JV was a ghost company as it had not been registered.

At the same time, the DPP argued that although another Italian firm, Itenere Spa of Italy cropped up, it was neither mentioned in the tendering documents adding that there is no information or data on the firm.

According to the DPP, although the Italian firm was folding, there was no proof to show that then minister had done due diligence.

Five firms ended up in the last stage of the bidding process. Sino Hydro emerged the best but its proposal that the employer ought to shoulder an additional Sh10 billion led to the tendering committee dropping it in favour of CMC Di Ravenna which was the second-best bidder.