Man sues classmate in Kemsa tender recording dispute

Kenya Medical Supplies Authority in Industrial Area, Nairobi on February 11, 2022. [Boniface Okendo, Standard]

A legal officer at the Kenya Medical Suppliers Authority (Kemsa) has dragged his former classmate to court for allegedly setting him up.

Evans Cheruiyot claims that Titus Barasa Makhanu secretly recorded their conversations on a tender, for provision of legal services, to the State agency. He then took the recordings to the Ethics and Anti-Corruption Commission to investigate him for soliciting a bribe.

"He set me up by recording our conversation and took them to EACC to investigate and prosecute me for allegedly soliciting a bribe. The commission cannot rely on the recording to investigate me since it was obtained without my consent," said Cheruiyot.

The Kemsa legal officer wants the court to stop EACC from investigating, arresting or charging him on account of the recordings by his friend and former classmate on court that the evidence is inadmissible for violating his right to privacy.

Cheruiyot in his affidavit stated that Makhanu was his classmate at Moi University School of Law and after they completed college, he was employed by Kemsa while his friend went into private practice.

He said Makhanu was then listed as one of the private advocates to act for the State agency and that they have been engaging each other in their official capacity and as acquaintances.

"Because of that, I always ensured that the legal instructions assigned to my classmate would be given the attention required and conducted in the best interest of Kemsa," said Cheruiyot.

Because of the closeness, Cheruiyot alleged that Makhanu kept calling and sending him messages between June and September 2021 to ask about the agency's plans to procure legal services for some upcoming court cases.

He stated that he agreed that they meet and discuss the matter but unknown to him, Makhanu had secret gadgets to record their conversation in audio and video format.

"Three days after we met, he told me he had a video and audio recording of our conversation in which he claimed I was demanding a bribe so that I approve his legal fees. This was intended to blackmail and manipulate me to approve his bidding for legal services," said Cheruiyot.

He added that on October 8, 2021, he was suspended from office by Kemsa board on account that they had received complaints that he solicited a bribe from Makhanu. He was directed to record a statement with EACC.

According to Cheruiyot, he reported to EACC as directed only to learn that they had the secret video recordings which they played and asked him to explain why he was soliciting a bribe from his former classmate.

"In the recordings, it is evident that it was Makhanu who kept on talking about money during our conversation which forced me to join ine unaware that it was a set up," said Cheruiyot.

Lady Justice Esther Maina directed Cheruiyot to serve EACC and Makhanu with the application for them to respond and schedule the hearing on Thursday.