Court acquits four persons in one out of many Triton oil cases

Businessman Yagnesh Devani leaves Milimani Law Courts, on February 12, 2024. [Collins Kweyu, Standard]

A court in Nairobi on Monday acquitted four persons who had been charged alongside Yagnesh Devani over the Triton oil saga. 

Milimani Magistrate Zainab Abdul said there was no evidence to implicate them for the alleged theft of $12 million from Kenya Commercial Bank (KCB).

Those acquitted include two KCB employees. However, it was unclear whether Devani was acquitted. 

The dismissal of the case marked the end of a 22-year trial in which Devani was tried in absentia.

Abdul was of the view that although the prosecution had claimed that the money went to the personal accounts of the accused persons, there was no evidence to show that the money was actually debited from KCB.

According to her, the evidence before her indicated that Triton and KCB had a business relationship. Therefore, she said, it was impossible to tell whether it was an act of stealing when the bank credited the money.

She said that recovery ought to have been done through a civil process.

The magistrate also faulted the State for dragging two KCB employees to the case for allegedly failing to stop the theft. She said all the invoices issued by the bank were cancelled by Devani and not the two.

The magistrate found it odd that only the employees were shouldering the burden of an entire bank.

“I find the prosecution has not established a prima facie (on the face of it) case against the accused persons,” she said.

Devani, a former director of Triton Petroleum Limited, was accused of engineering the release of the company’s stock of fuel from the Kenya Pipeline Company’s (KPC) storage tanks without informing the financiers.

As a result, the 2008 action left the financiers and oil companies with a Sh7.6 billion loss, which threatened fuel supplies in Kenya and lay-offs. Devani then fled the country in 2009.

What followed was a flurry of cases, some ongoing while others have been settled.

As Devani’s co-accused were being acquitted by Abdul, another case before Magistrate Robinson Ondieki was being mentioned.

In the case before Ondieki, the tycoon is accused of stealing jet fuel worth Sh1.5 billion. The case will be heard on March 26.

On September 3, 2014, a court in the United Kingdom (UK) dismissed all the challenges mounted by Devani and forwarded the request to the Secretary of State who ordered for his extradition on October 21, 2014.

Devani rushed to the appellate court but lost. A ruling delivered by Lord Justice Underhill following the petition by Kenya’s Director of Public Prosecutions (DPP) brought to a close Devani’s attempts to seek asylum in the UK.

In his case, he claimed that Kenya had harrowing and dangerous jails. Among those who had financed the petroleum consignment and lost money in the fraudulent deal are KCB and PTA banks.

The others are Glencore Energy UK Limited, Emirates National Oil Corporation of Singapore and Fortis Bank of The Netherlands.

The deal between KPC and Triton, dating back to 2004, lay bare one of the biggest financial scandals.

Huge risks

Forensic audits showed it exposed KCB and the PTA banks to huge risks after a massive oil import worth billions of shillings financed by both banks through letters of credit that vanished into thin air from the KPC-owned Kipevu Oil Storage facility in Mombasa.

The oil was being held at the facility in trust for financiers and marketers. The paper trail, according to the defunct Kenya Anti-Corruption Commission (KACC) charge file, shows the oil was secretly sold to several marketers in the country.

Triton had won the tender to import oil under the Open Tender System (OTS). Both KCB and PTA banks were unaware of the others’ involvement in the cunningly executed collateral financing of Triton. This amounted to some form of chequekiting where the oil firm ‘borrowed from Peter to pay Paul’.

There are several criminal cases involving Devani. The first is criminal case 1150 of 2009 that was filed on June 16, 2009, with the holding charge being conspiracy to defraud.

From the data seen by The Standard, Devani and co-accused first appeared before Chief Magistrate Gilbert Mutembei. The case was then brought before Milimani Chief Magistrate Francis Andayi.

All this time, Devani was fighting not to be extradited to Kenya from England. The hearing started on July 2, 2018, in his absentia, with 15 witnesses being called to testify.

All this time, his co-accused – Pathak, Kilonzo, Otieno and Mutua – were out on bail. They were charged with conspiracy, stealing, failing to prevent a felony and fraudulent disposition of mortgaged goods.

In the first count, it was claimed that between July 28 and August 1, 2008, at KCB, they discounted Triton petroleum invoices amounting to more than US$12 million with an intent to defraud.

The oil scandal broke out in January 2009, but the offence was committed in 2008. By the time it became public, Devani was already out of the country.

He faced the spotlight in 2009 when news of the Triton oil saga hit the headlines following allegations that fuel worth close to Sh8 billion had disappeared.

Devani is alleged to have masterminded the scam, which also unearthed serious weaknesses in the country’s oil import OTS system.

There was also another criminal case number 44 of 2002 initially filed at Kibera court. In the case, there was Devani, William Mundia, Joseph Lagat, MG Srimam and Triton Petrol EUM Company Limited.

This case ended up at the High Court before justices Kalpana Rawal and John Osiemo, with the accused claiming that the State had continued to abuse the court process.

Langat swore an affidavit on behalf of the others. He stated that the Triton saga was purely a civil dispute. He also claimed that the police were being used by debt collectors and the media was part of a larger scheme of harassing and prejudicing them.

The case revolved Petro Oil (K) Limited, which was the affected party and Triton Petroleum Limited. Both were importers of oil that was being stored at KPC.

No contract

A dispute arose in which Petro Oil claimed there were deliveries and yet there was no contract. Triton never responded.

In June 2002, Petro Oil complained to the police and Triton, alongside five others, were charged with seven counts on June 11, 2002, at Kibera law courts. The alternative charge was handling stolen property.

During investigations, a search and warrant for seizure were issued. However, Triton filed a case at the High Court civil case number 1069 of 2009 against the Attorney General and Petro Oil claiming malicious prosecution.

In a response filed in November 2002, Petro Oil argued that it reserved a right to claim Sh120 million against Triton for alleged theft.

Triton asked Rawal and Osiemo to suspend the case. The two judges observed that the order to attach Triton’s products were issued in an application filed by a police officer named Jack Agai.

They further noted that the orders were quashed by the magistrate’s court after Triton contested the same.

In the meantime, Triton relied on yet another ruling before the High Court, case number 570 of 2002, in which Justice William Tuiyot (deceased) observed that all parties had agreed that the dispute was civil in nature.

However, justices Rawal and Osiemo said the ruling by Tuiyot could not be used to close the case. They said that although Petro Oil wrote demanding for its pound of flesh, the letters never disclosed how much it was demanding.

Triton relied on an affidavit sworn by Morris Okumu Sakwa who claimed that vehicles belonging to Petro Oil were used by the police during the investigation as well and some lunch money was also paid to investigators.

Justices Rawal and Osiemo expressed their disapproval of the police conduct.

“We can only frown upon this usual practice of the police while investigating a crime in our country,” they said in their September 23, 2003, verdict. They, however, threw out the Triton case.

“We are also not properly satisfied from the facts which are brought to our attention that the predominant purpose of these criminal proceedings is to harass or intimidate the applicants or to allow the police to act as debt collectors,” the judges ruled.

There is also the anti-corruption case 18 of 2009 facing Devani, Mutua, Kilonzo, Otieno, Peter Mecha, Phanuel Okwengu and Triton. It has not yet been settled.

The case was filed on June 16, 2009. The case was heard by, among others, Justice Lawrence Mugambi, then a chief magistrate.

In the case, Devani and the others were accused of stealing, fraudulent acquisition of mortgaged goods and conspiracy to defraud public funds.

They were accused of stealing 318 metric tons of jet fuel amounting to Sh40.4 million at Kipevu Oil Storage facility between April 23 and December 4, 2008.

The second charge was conspiracy to steal Sh1.3 billion belonging to KCB between July 31 and August 1, 2008.

In 2021, the DPP sought to introduce 230 documents in the case. By that time, 35 witnesses had already testified. Mugambi rejected the DPP’s move.

Aggrieved, the DPP filed an appeal before Justice Esther Maina arguing that the first prosecutor who was handling the case died and when the new team took over and reviewed the case, new evidence was discovered.

“My finding, in this case, is that it would be grossly unjust and unfair to allow the applicant to introduce the evidence which was within its knowledge and possession for all the 22 years but which it chose not to disclose to the defence,” ruled Justice Maina on March 3, 2022.

After Mugambi was appointed as a High Court judge, the case was taken over by Senior Principal Magistrate Peter Ooko then Magistrate Isabellah Barasa. The case is slated for a hearing on April 23, this year.

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