Ex-Governor Waithaka, CEC fined Sh1m in Sh50m tender case
Former Nyandarua Governor Daniel Waithaka Mwangi (left) and former County Executive Member for Water Grace Wanjiru Gitonga at the Nakuru Law Courts on July 27, 2018 when they were accused of abuse of office and corruption.
If former Nyandarua Governor Daniel Waithaka Mwangi had attended his sentencing in a corruption-related case on Thursday, he would have been struck by the stark loneliness of facing judgment alone.
None of his political allies, close associates or the power brokers who once surrounded him were present.
The very individuals who had shielded him from scrutiny, secured lucrative deals and risen from obscurity to prominence under his leadership were nowhere to be seen.
These were the same figures who once dictated access to the governor, both in office and at his home.
They accompanied him to public and private functions, travelled to prestigious destinations for the first time in their lives during his tenure and enjoyed the privileges that came with proximity to power.
But when the moment of reckoning came, the courtroom was empty with no cheering crowds and no solidarity.
Ex-Nyandarua Governor Daniel Waithaka Mwangi while still in office.
Apart from his defence lawyers, court orderlies and the prosecution, there was no one.
The governor and his former County Executive Committee (CEC) member for Water Grace Gitonga were sentenced in absentia during a virtual court session that lasted two hours.
Nyandarua Chief Magistrate Evans Kiago delivered the mitigation and sentencing with only Ms Gitonga appearing on the screen. Visibly shaken, she struggled to contain her tears as the ruling was read.
Mr Waithaka is reportedly hospitalised in Nairobi while his co-accused sat through the proceedings alone.
The sentencing came days after the court found the duo guilty of procurement irregularities and abuse of office.
Following investigations by the Ethics and Anti-Corruption Commission (EACC), they were found to have unlawfully awarded a Sh50 million contract to Israel-based Tahal Consulting Engineers Ltd.
The court imposed a fine of Sh1 million or a two-year jail term in default each for the irregular procurement and abuse of office charges.
In his ruling, Mr Kiago showed leniency after defence lawyers led by Moses Tumu convinced the court that no money had been lost in the deal.
The court also took into account Mr Waithaka’s advanced age of 80 years and his deteriorating health.
The EACC had alleged that the contract was awarded irregularly and that the deal involved individuals masquerading as Tahal Consulting Engineers Ltd.
The prosecution claimed that two Israeli nationals Chen Yochanan Ofer and Albert Attias received the funds and then vanished.
However, the case collapsed on the issue of financial loss.
County officials testified that the consultancy services were successfully delivered and that the recommendations were actively used in water and sewerage projects in Ol Kalou.
Tahal was contracted during the 2013/2014 financial year to develop a County Water Master Plan and design the Ol Kalou Town Sewerage System.
During mitigation, the defence urged the court to consider a noncustodial sentence.
“The accused persons are very remorseful and acknowledge the gravity of the issue. The first accused is elderly at 80 years old and has served at national and county levels as an educationist. He has suffered a stroke, a fact demonstrated during the trial through medical documents,” the defence argued.
Special care
The court was informed that Mr Waithaka was unable to walk or talk and was under special care at Nairobi Hospital. The lawyers argued that imprisoning him would be impractical given his irreversible medical condition.
The lawyers also emphasised that the case was unique since no funds were lost, no misappropriation occurred and the county continued to benefit from the consultancy services.
“The EACC failed to prove that any money was lost. This was purely a case of procurement irregularities and not misappropriation,” said lawyer Tumu.
He requested the court to show leniency to Mr Waithaka allowing him to seek medical treatment.
The defence also pleaded for mercy for Ms Gitonga arguing that she had no prior criminal record.
Her lawyers argued shhe was charged with lack of proper planning and the court needed to consider the background that this was the county’s first government still in its infancy and the accused persons had goodwill.
They argued te two were under immense pressure to deliver on political promises.
He further explained that water was a major issue in Nyandaru and the two were merely responding to the public’s demands.
“The contract in question was for water and sewerage infrastructure in Ol Kalou. The two were under pressure to deliver and neither the EACC nor the prosecution proved that any funds were lost,” the lawyer stated.
The defence noted that the case had dragged on for seven years serving as a punishment in itself.
For Ms Gitonga, the lawyers urged the court to consider that she was a single mother of three and that a harsh sentence would have devastating consequences for her family.