Kenya Power graft scam: State barred from introducing new charges

The anti-corruption court in Milimani Nairobi has stopped the State from introducing fresh charges in the Sh480 million graft case facing former Kenya Power Managing Director Ben Chumo and 14 others.

Trial magistrate Felix Kombo said the introduction of new charges amounted to restarting the case which commenced in July 2018.

He noted that 33 Prosecution witnesses have so far testified and hearing of the case is almost at the tail end. The said witnesses include Kenya Power employees who testified over the alleged procurement of faulty transformers.

"It is now four years since the accused persons were arraigned in court and only five State witnesses are remaining. To allow the proposed amended charge will take us back to four years," ruled the magistrate.

"In my view, this entails grave prejudice to the defence case and strategy. It is akin to subjecting the accused persons to a new trial in the middle of another,” he stated.

Dr Chumo and other executives at Kenya Power were arraigned in court in 2018 over accusations of entering into a contract with a private firm for the supply of transformers, which turned out to be faulty. The anti-corruption watchdog alleged that they flouted procurement rules for State entities. They denied the charges and are out on bond terms.

The prosecutor, Delroy Mwasaru, had sought to amend the charge sheet by introducing fresh charges after amending some particulars in the old charge sheet.

The defence led by lawyer Katwa Kigen opposed the application saying the proposed new charges were being introduced too late in the day when the case was almost being closed.

"The new charges are an afterthought to seal loopholes in the defective case," said the defence lawyers.

But the Prosecutor said that the law permits introduction of amendments at any stage before the judgement is rendered and no prejudice would be occasioned to the accused person.

According to the state, upon evaluation of the evidence on court record and the pending evidence to be adduced at trial, there was material reasons which necessitated the amendment of the charges currently facing the accused persons.

The DPP had said that the intended charges were meant to ensure that justice is done.

In its ruling, the magistrate said the new charges, if allowed, would further delay the conclusion of the trial.

According to the magistrate, an examination of the proposed amended charge sheet showed that fundamental changes were being proposed in the majority of the charges in an attempt to disadvantage the accused persons.

"I do not find that the state has demonstrated that it would suffer any prejudice. The application fails in its entirety and is dismissed with no orders to cost," Magistrate Kombo ruled.

The court allowed the prosecution to proceed with the case using the initial charge sheet. But the Prosecution requested for adjournment of the hearing to give room for consultation from the authorities in relation to the court ruling. The case will be mentioned on August 25, 2022 to confirm the position of the Prosecution.

Mr Chumo was charged alongside former Kenya Power Managing Director Ken Tarus, Beatrice Meso, Peter Mungai, Joshua Mutua, Abubakar Swaleh, Samuel Ndirangu, Stanley Mutwiri, Benson Muriithi, Peter Mwicigi and John Ombui.

They face charges of conspiracy to commit an offence, aiding the commission of a felony, willful failure to comply with procurement laws, conspiracy to defeat justice and fraudulent acquisition of public property.

Prosecution claims that Kenya Power floated a tender for supply of distribution of transformers involving seven suppliers who were to supply the State Corporation with transformers for a cumulative sum of USD 45,866,100 equivalent to Sh5.4 billion.

According to the Prosecution, Kenya Power awarded Muwa trading company limited the contract to supply the transformers on August 3, 2012 for a contractual sum of Sh408 million.

The Prosecution has since withdrawn charges against the trading company at the centre of the multi-billion tender and made them their witnesses.

The case will be mentioned on August 25.