Ex-KPA boss Daniel Manduku freed on Sh30m bond in graft case

Former Kenya Ports Authority (KPA) Managing Director Daniel Manduku has been released on Sh30 million bond or Sh12 million cash bail in a Sh1.4 billion procurement graft case.

His co-accused Works Officer Juma Fadhili Chigulu was also granted the same terms of release at the Milimani Law Courts in Nairobi on Friday.

Chief Magistrate Lawrence Mugambi also directed the accused to surrender their passports and other travel documents to the court and not to go to the KPA’s offices.

Mr Manduku and Mr Chigulu were both remanded to Kileleshwa Police Station pending processing of the bail or bond.

The two are jointly accused of conspiring to commit an offence of corruption by approving procurement of concrete barriers works with a contractual sum of Sh1.4 billion without a budget approval.

They are also charged with engaging in procurement for a manufacturer of the concrete barriers without prior planning.

According to the charge sheet, the offences were committed between March 29 and August 22, 2019 at the KPA headquarters in Mombasa.

They denied the charges earlier on Monday.

Arguments

Mr Manduku’s lawyer Nelson Havi had told the court that he was suffering from a serious respiratory condition.

Other members of the former MD's legal team were Julie Soweto and Siaya Senator James Orengo while Mr Chigulu was represented by Mr Erick Theuri.

Ms Soweto said the accused persons should not be treated as guilty.

She also noted that Mr Manduku was granted a Sh500,000 anticipatory bail by the High Court in Mombasa in December 2019.

Mr Havi asked the magistrate to have the same amount, which was deposited in court, imposed as the bail for securing his court attendance during the trial.

“We urge the court to depart from the precedent lately used in anti-corruption matters, where hefty cash bails and bond terms are issued. The purpose of bail or bond is to secure attendance,” he said.

Mr Theuri noted that Mr Chigulu is a junior civil servant earning a monthly salary of less than Sh100,000.

“Consider the unique and personal circumstances of the second accused. He is 58 years old and within the vulnerable category [of Covid-19 infection]. His is on half pay and the drastic reduction of his salary should be taken into account. We urge the court to put different bail or bond terms for the accused," he said.

The prosecution, led by State counsel Eva Kanyuira, did not oppose the application for the suspects' release but asked the court for tough terms.

“They are facing serious offences ... we urge the court to take cognisance of that,” he said.

Rationale

In issuing the orders, Mr Mugambi explained that "given the amount involved in the charge sheet and the alleged loss, public interest must be taken into account and public confidence restored in the manner in which the court dispenses with corruption cases".

"Graft has adverse effects on the economy,” he noted.

He added that though bond is a constitutional right, the court must exercise its discretion in a manner in which the public does not lose confidence in how decisions are made.

“Decisions of the court in terms of bail must be fair so that members of the public,who understand bond and bail policy guidelines, can be satisfied that justice is done.”

The case will be mentioned on September 25 for pre-trial and directions. The defence lawyers were directed to pick documentary evidence from the case investigation officer.

Director of Public Prosecution (DPP) Noordin Haji has lined up at least 17 witnesses to testify in the case against.  They include KPA's former acting Head of Ethics and Integrity Joseph Okhako, board chair Joseph Kibwana and a host of other managers and police.

Other charges

Mr Manduku, who was also KPA’s accounting officer, faced two separate charges of willful failure to comply with procurement laws, procedures and guidelines, contrary to provisions of the Anti-Corruption and Economic Crimes Act, 2003.

He allegedly occasioned misappropriation of Sh678.8 million in KPA’s annual budget for the 2018/19 financial year by undertaking procurement of the concrete barrier works.

The project was in violation of Section 44 (2)(a) of the Public Procurement and Asset Disposal Act, 2015.

In another count, the former MD was charged with abuse of office.

Mr Chigulu, who is attached to KPA’s civil engineering department, was separately charged with abuse of office for unlawfully preparing works evaluation certificates that were erroneous.

The certificates were presented to the KPA’s finance department by contractors for payment, thereby occasioning an overpayment of Sh244.8 million.