Judiciary declines to pay Sh42m Elgon Place rent

Chief Registrar of the Judiciary Anne Atieno Amadi. PHOTO | PAUL WAWERU

What you need to know:

  • Registrar questions procurement of the building in Upper Hill
  • Offices in building located in Upper Hill meant for Appeal Court judges

The Judiciary has reversed its controversial decision to rent office space at Elgon Place building that was to be a temporary home for the Court of Appeal.

Chief Registrar Ms Anne Amadi said the Auditor-General has raised a number of audit queries on the procurement of the building.

In letters seen by the Sunday Nation, the Chief Registrar further says that her decision not to pay the $500,000 (Sh42.5 million) rent for the 2014 quarter 1 was because there was no authority to pay for the lease in dollars.

“There was no authority from the National Treasury allowing the Judiciary to pay for the lease in dollars,” she said in a letter dated April 11 to Knight Frank, the property managers.

Government rules on financial management dictate that all transactions must be done in Kenyan shillings.

Last year, the Judiciary entered into a six-year lease agreement of Elgon Place in Upper Hill for an annual rent of Sh603.6 million to be used by the Court of Appeal.

But the building remains unoccupied because of an ongoing investigation into the potential health threats posed to judges and staff by possible radiation from the transmission masts on an adjacent property.

“As the accounting officer, I am unable to sanction payment of your invoice in view of all these challenges that must be addressed,” Ms Amadi said.

It is estimated that leasing the building for six years would have cost the Judiciary Sh3.62 billion.

It is not clear what steps the owners of the buildings will take to seek redress.

Questions have been raised within the Judicial Service Commission (JSC) about the prudence of committing the Judiciary to over Sh5 billion in leases for buildings the institution would had have to surrender, with some preferring the acquisition and construction of buildings.

This week four senior Judiciary officials recorded statements at the Ethics and Anti-Corruption Commission as part of investigations into irregular procurement of offices and residential buildings.

Earlier, the Chief Registrar had waived the attorney-client privilege for an advocate who had been summoned to the Ethics and Anti-Corruption Commission for questioning in connection with the purchase of the residence of the Chief Justice at Sh310 million.

The purchase of the house exceeded the Sh219,664,924 provided for in the budget for 2012/2013.

The financial clean-up this week instituted by Ms Amadi led to the cancellation or variation of four construction, lease and property purchase contracts running into billions of shillings.

A two-year lease of six floors at Rahimtulla Towers in Upper Hill to accommodate administrators’ offices valued at Sh1.57 billion is also under review.

Ms Amadi wrote to the landlord’s lawyers, surrendering three unoccupied floors so the Judiciary would only pay for the space it is able to use.

The Registrar has also cancelled the construction of a Sh691 million High Court building at Kapsowar in Elgeyo Marakwet County.

Internal Judiciary correspondence indicates that after the award of the contract, it was discovered that the Judiciary did not have land on which to build the courthouse.

“Therefore, the contractor has not taken possession of the site and this contract is not likely to be executed as planned,” Ms Amadi said in a letter dated April 10 to Chief Justice Dr Willy Mutunga.

She also rejected a proposal to vary the contract and move the court to a different site saying it contravenes Section 47(b) of the Public Procurement Act.

“(The Section) does not talk about the variation of site thus the Act did not envisage site variation,” she said.

Upon termination, contract terms demand that the contractor be paid for the value of the work done, materials ordered, the reasonable cost of removal of equipment, repatriation of the contractor’s personnel employed solely on the works and the contractor’s costs of protecting and securing the works.

“Given these two clauses in the contract, the Judiciary can terminate the contract without huge loss since the contractor has not moved to site,” Ms Amadi said.

“I thus recommend that the Judiciary terminates the contract and start the process afresh.”

Earlier in the week, the Registrar revealed that Sh46.4 million had been paid to a contractor and consultants to build a court in Mavoko, which does not exist one year later.