High Court clears path for DCI to investigate FKF president Nick Mwendwa
FOOTBALL By Robin Toskin | October 14th 2021
The High Court of Kenya has cleared the path for the Directorate of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) to investigate FKF President Nick Mwendwa over suspected misappropriation of funds at Kandanda House.
The FKF boss had on October 1 last year sought to gag the DPP and DCI from investigating him over a complaint to the Banking Fraud Investigations Unit (BFIU) direct transfer of millions of shillings from the federation to Mwendwa's personal accounts.
Through lawyer Tom Ojienda, Mwendwa sued DCI and the DPP alongside journalist Milton Nyakundi, who had filed the complaint with the Banking Fraud Investigations Unit of DCI on October 1 last year.
Nyakundi had also separately filed the complaint on July 29 last year with the Investigatory Chamber and Ethics Committee of world football governing body, Fifa, under Article 58 (1) of the FIFA Code of Ethics to activate Article 59 of the FIFA Code of Ethics to find that Mwendwa had violated the law.
The journalist has flagged the movement of over US$ 94,077 and KSh17,583,951 between January 18, 2019 and June 26,2020. Fifa is yet to act.
Mwendwa, however, moved the High Court of Kenya to find that Nyakundi, not being a member of FKF, had no locus to complain over FKF matters.
In his ruling on Thursday, Judge J.A Makau dismissed Mwendwa’s case saying it lacked merit, was premature and speculative.
"I therefore find the petitioners' prayer for an order of a permanent injunction prohibiting the DCI and DPP summoning, investigating, charging or prosecuting the petitioners with respect to financial
management of FKF is not justified in the circumstances of this case," declared Justice Makau.
"The instant petition is premature and purely speculative."
Nyakundi had petitioned the BFIU and the Ethics and Anti-Corruption Commission to investigate fictitious transactions at Kandanda House, including direct transfer of funds from the federation's to Mwendwa's personal accounts.
The Auditor General's report for 2018/19 had flagged Sh11 million paid to Mwendwa without proper documentation.
In his submissions during the hearing, Mwendwa had argued that the summons by the DCI amounted to a violation of his fundamental rights as enshrined in the Constitution and that the procedure to summon him for statement recording had contravened the Fair Administrative Action Act.
Judge Makau, however, ruled in the 36-page judgement that, “It has not been demonstrated how the DCI and DPP have acted ultra vires or against the law in investigating a complaint by a member of the public (Nyakundi)."
Mwendwa had also argued that acting on Nyakundi's complaint was inappropriate for the reason that he (Nyakundi) was not a member of the FKF and that all financial transactions had been given a clean bill of health by the federation's members through the internal audit systems.
"The Petitioners claim that the FKF Constitution and the FIFA Statutes provides for a comprehensive mechanism of financial audit of all monies received by the FKF.
"However, I am not convinced that the existence of an audit mechanism negates the investigative jurisdiction of the DCI and the DPP and specifically where a complaint of a financial crime has been made.
"I am unconvinced that the DCI and DPP have acted outside their mandate," the ruling reads.
Nyakundi argued that he had the right to move the court to seek recourse because FKF receives millions of money from the public coffers and therefore accountability for such funds must be subjected to public finance management laws and regulations.
"I find the effect of Section 46(6) of the Sports Act is clear that every member of the public has the right to invoke Constitutional provisions to appraise themselves with whatever they feel they deserve to know about the affairs of FKF.
"I find that Milton Nyakundi has every right as a member of the public to seek information as clearly provided in the constitution."
The DCI and the DPP, on their part, had submitted that the investigations were just part of the judicial system and did not necessarily mean one is guilty, adding that only a court of law had
the authority to find if Mwendwa was guilty or not upon interrogating evidence presented before it by the DPP.
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