Former Samburu Governor Lenolkulal appeals sentence, says magistrate misinterpreted the law

Former Samburu Governor Moses Lenolkulal, convicted for graft, has appealed his 8-year imprisonment on grounds that the magistrate misinterpreted the law and failed to analyse evidence.

In his appeal to the High Court, Mr Lenolkulal says the court erred in finding that the law barred public officers from trading with public entities where they are employed. He argues that the Anti-Corruption and Economic Crimes Act, which creates the offence, provides for disclosure and it can only become an offence when there is concealment.

“The learned magistrate erred in law by finding that the Anti-Corruption and Economic Crimes Act barred public officers from trading with public entities where they are employed,” Mr Lenolkulal says in the appeal filed on Friday.

While convicting him last month, Chief Magistrate Thomas Nzioki said the case rested on a breach of public trust by public officers, a move that went unabated for two terms when Mr Lenolkulal served as the Samburu governor. He said the offending acts of Mr Lenolkulal and his proxies were deliberate and in breach of the tenets of good governance, expected of public officers.

“There cannot be any excuse for a governor to trade with his county government. The consequences of such action are dire to the people he is elected to serve. A governor so conflicted will not be keen to give his whole to the people,” the magistrate said.

Mr Lenolkulal and Mr Hesbon Wachira Ndathi were found guilty of conflict of interest and unlawful acquisition of public funds and were fined a total of Sh85.4 million each or in default, serve eight years in prison each.

The duo has since been released on bond of Sh10 million each, pending the hearing and determination of their appeal.

Through lawyer Paul Nyamodi, Mr Lenolkulal further faults the magistrate who even after finding that the fuel and lubricants were delivered and paid by the county government, goes ahead to sentences him, yet there was no loss of public funds.

Mr Nyamodi said no loss was occasioned to the Samburu County Government, and reckons it was wrong for the court to sentence him under Section 48(1)(b) of the Anti-Corruption and Economic Crimes Act. 

He also pointed out that there were inconsistencies and contradictions on the amounts the former county boss is alleged to have acquired, as set out in the charge sheet, and the amounts extracted from the Ifmis platform. The lawyer argues that by substituting the figures set out in Counts 3 and 4 of the charge sheet, the magistrate allowed himself to descend into the fray of the trial and by so doing, conducted the trial in a manner contrary to the Constitution.

The amounts stated in the charge sheet, which they unlawfully acquired is Sh84.6 million, but data obtained from Ifmis system is stated as Sh83.4 million.

Mr Lenolkulal also argued that in a lease agreement dated May 1, 2013, he ceased ownership and control of Oryx Service Station, which traded with his administration. He claims the prosecution failed to demonstrate to the required standard that he personally or directly benefited from funds paid by the county to Oryx Service Station.

Additionally, his lawyer argues, the magistrate failed to consider that the High Court had previously directed will lose property bought using funds gotten from the same transaction that was the subject matter of his prosecution.

“The magistrate erred in fact and law by falling to fully analyse and evaluate the evidence adduced and thereby arrived at the wrong conclusions of fact,” he said. 

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