Behind EACC clash with ODPP over bid to drop ex-KPC boss Charles Tanui’s Sh40m graft case
Former Kenya Pipeline Company managing director Charles Tanui before a parliamentary committee in Nairobi in 2014.
What you need to know:
- EACC is opposed to an application to terminate graft charges against ex-Kenya Pipeline boss Tanui.
- Tanui and two other former KPC officials are accused of failing to comply with procurement law by authorising payment of €261,070 (about Sh40.3 million) to Redline Limited.
The Office of the Director of Public Prosecutions (ODPP) and the Ethics and Anti-Corruption Commission yesterday clashed in court as the latter opposed an application to terminate graft charges against a former Kenya Pipeline Company (KPC) boss.
The ODPP had applied to drop the charges against former KPC managing director Charles Tanui who is charged alongside Mr Josephat Kipkoech Sirma (chief engineer, instrumentation and control) and Elias Maina Karumi (chief technical manager).
But the anti-graft commission, in an oral application, opposed the move arguing that only one witness was remaining to testify. In its view, therefore, the trial court was best placed to decide whether the accused persons were innocent or not.
Senior Principal Magistrate Victor Wakhumile agreed with EACC’s submissions and dismissed the ODPP’s application to drop the charges.
“It would be against public interest and the interest of justice to terminate the case, considering that 25 out of 26 witnesses have testified and the matter is at the tail end with the last witness set to testify,” the magistrate said.
He added: “The power to withdraw cases is not absolute but must be exercised judiciously, with due regard to public interest.”
The only remaining witness is an EACC officer who investigated the case.
The ODPP, through principal prosecution counsel Jeremiah Walusala, wanted the case terminated on the basis that a review of the evidence and documents revealed that justice would be served by terminating the case.
“That upon review of the evidence vis-à-vis the said letters, the DPP arrived at a decision that it was not tenable to proceed with the case against the respondents without occasioning injustice,” said Mr Walusala.
The former KPC officials are accused of failing to comply with procurement law by authorising payment of €261,070 (about Sh40.3 million) to Redline Limited for three autotransformers on February 18, 2014.
The charges stated that Mr Tanui conferred a benefit to Redline by authorising payment of €8,695 (Sh1.3 million) for a tender for installation and commissioning of line 2 station autotransformer.
Mr Sirma was accused of signing a material arrival advice note without lawful authority purporting it to be genuine and certifying that works in respect of the tender issued to Redline had been completed successfully. He was further accused of preparing an inspection report that facilitated the irregular payments to the company.
Mr Tanui and his co-accused had initially been charged with the same offences in 2015, but they were withdrawn after it emerged that EACC, which had investigated the matter, was not properly constituted and hence could not have recommended the charges.
Former Kenya Pipeline Company boss Charles Tanui (centre) in a Nairobi court where he faced abuse of office charges alongside Elias Maina Karumi ( left) and Josephat Kipkoech. PHOTO | FILE | NATION MEDIA GROUP
At the time of issuing the tender, KPC needed three autotransformers and hired France’s Agecelec to bring the equipment to Kenya, install and commission it. Investigators would later find that Redline received the payment for the transformers, before being paid another Sh973,912 in installation and commissioning fees.
Mr Wakhumile had on July 18 last year dismissed another application to terminate charges against Mr Sirma under section 87 of the criminal procedure code as sought by ODPP.
After losing the application, Mr Sirma moved to the High Court but suffered the same fate when Justice Nixon Sifuna dismissed the appeal. The judge said in a ruling on January 31 that no case can be withdrawn without the permission of the court and that decisions by prosecutors to abandon or terminate cases against certain co-accused should be desisted.
“Regrettably, this practice is increasingly gaining notoriety and becoming fashionable with Kenya’s prosecutors. This ruling should be a clampdown on that practice,” Justice Sifuna said.
Also Read: Magistrate declines to throw out graft case against former Kenya Pipeline boss Charles Tanui
The judge added that the prosecution should present its evidence and let the court decide on it.
“It is not for the prosecutor to declare the accused person innocent. Such a declaration is unacceptable and extra-judicial, a mutinous change of roles, as well as an excess and usurpation of jurisdiction,” said the judge.
When the High Court declined to drop the charges against Mr Sirma, the ODPP then decided to terminate the charges against all the accused persons.
The ODPP informed the court that it received a request on November 21, 2023 from the accused persons seeking a review of the decision to charge them. The prosecutor added that the accused persons authorised the payment for the tender in question after being advised and confirming that all the documents were in order. It was also submitted that no public money was lost after considering the evidence tendered so far.
Mr Tanui said he signed a letter authorising the payment to Redline after going through the documentation submitted to him, confirming that works had been completed successfully.
He said he was not a member of any committees that approved the award of the tender and being without technical knowledge on transformers, he only relied on the documents to authorise the payment.
Last year, prosecutors declined to lead witness in giving testimony in the trial of former Cabinet secretary Henry Rotich and others over the alleged loss of Sh55.8 billion meant for the construction of Kimwarer and Arror dams in Elgeyo-Marakwet County. The move forced the court to acquit all the accused persons.
