High Court quashes appointment of Antony Mwaura as KRA Chairman on procedural infirmities in Petition No. E009 of 2023: Dr. Magare-Gikenyi Vs Antony Mwaura, AG, and CS National Treasury
Kenya observes African Anti-Corruption Day with focus on strengthening whistleblower mechanisms
12:07:2024: Kenya joined the rest of the Member States of the African Union (AU) in commemorating the African Anti-Corruption Day yesterday. July 11th of every year is set aside so that concerned Africans can pause to reflect on anti-corruption progress in their communities in regards to the successful or unsuccessful anti-corruption initiatives and interventions and to chat the way forward. Yesterdayâs commemoration theme reflected on the reforms required to strengthen existing whistleblower mechanisms including protection of whistleblowers, effective anonymous reporting systems and the role of citizens in advancing the elusive quest for accountable governance. The Ethics and Anti-Corruption Commission (EACC) led Kenya in celebrating the day in an event organized at Raddison Blu Hotel in Nairobi where it was joined by Kenyaâs development partners and representatives of the Kenya Leadership Integrity Forum (KLIF). KLIF is a stakeholderâs forum consisting of 15 sectors that partner in the fight against corruption and unethical practices in Kenya. It brings together stakeholders from the public and private sectors, civil society and religious organizations to map out an integrated approach to preventing and combating corruption including the Legislature, Judiciary, Executive, EACC, Enforcement and watchdog agencies, County Governments, Media and Religious Sector. Speaking at the event, EACC Chairperson, Dr. David Oginde noted that whistleblowing is key in the anti-corruption endeavours as it ensures that corruption, due to fear of reprisal, goes neither undetected nor unpunished. He also observed that whistleblowing in Kenya is adversely affected by trust deficit in public institutions. For Kenya to overcome the challenge of corruption, Dr. Oginde said, all state and non-state actors must play their roles in weeding out corruption and stressed the importance of putting in place mechanisms for whistleblower protection and enhanced good governance. Dr. Oginde appreciated that for Kenya, this yearâs commemoration of the African Anti-Corruption Day comes in the wake of an increased clamour by the youth for accountability and good governance in the country. He encouraged all stakeholders to engage in finding lasting solutions to the prevailing challenges. Mr. Twalib Mbarak, EACCâs Chief Executive Officer revealed that whistleblowing is a critical source of information about the secretive acts of corruption, perpetrators and schemes employed to defraud the public and that the Commission has over the years investigated complex cases of corruption arising from information provided by whistleblowers. Mr. Mbarak called on the National Assembly to prioritise enactment of Whistleblowers Protection Bill, which will encourage more Kenyans with information on corruption and unethical conduct to report without fear or adverse consequences. Pointing to EACCâs National Ethics Corruption Survey 2023, Ms Elizabeth Duya of Transparency International Kenya said 61.1% of people believe whistleblowers are likely to face retaliation, and only 28.2% feel they are adequately protected. Ms Duya said that historical cases like the Goldenberg and Anglo Leasing scandals, along with recent issues involving the National Hospital Insurance Fund and the Maasai Mara University demonstrate the persistent dangers whistleblowers face, including job loss, legal battles, and even death. July 11 marks the day the AU adopted the African Union Convention on Preventing and Combatting Corruption (AUCPCC) in Maputo, Mozambique on 11 July 2003. The Convention came into force in 2006 and as of August 2021, it had been ratified by 44 Member States of the African Union.
Prosecution tables key investigation documents seized from Obado
9:07:2024: Prosecution witness, Robert Rono, continued with giving evidence in today’s hearing before Chief Magistrate Hon. Victor Wakumile at Milimani, tabling key documents that also brought out the nexus between the former Governor of Migori County, Mr. Zachary Okoth Obado, and his proxy, Jared Odoyo Oluoch Kwaga. First, the witness testified regarding a search conducted at the residence of Mr Kwaga and tabled various relevant documents to the investigations. These were mainly seven letters written by Cooperative Bank of Kenyaâs Regional Manager for Parliament Road and Moi Avenue branches, Nairobi, Richard Misoi, to Mr. Jared Kwaga closing seven accounts for businesses that traded with the County Government of Migori. Three of the accounts were held in the name of Mr. Kwaga who is also charged alongside Mr. Obado, one in the name of Atina Services, one for Swyfcon Engineering, another for Dolphus Software, and the last one for Joyush Business. Majorly, however, the witness testified regarding searches conducted in various residences and offices of the former Governor for Migori County vide Miscellaneous Application No. 63 of 2018 and the documents recovered therein relevant to the investigations. From his official residence in Migori, the witness tabled three key documents. One, a letter of offer for purchase of a town house No. C-1 in Loresho, Nairobi, from Kenya Power and Lighting Company (KPLC) Pension Scheme. It was purchased in the name of Jared Kwaga at a cost of Kes34,525,000. Two, a transactional slip by Jared Kwaga showing a deposit of Kes3,450,000 to the KPLC Pension Scheme and, three, a memorandum of Article of Association for Hon. Zachary Okoth Obado Foundation incorporated in 2014. Its subscribers included Jared Kwaga, Samuel Odhiambo, and Grace Olima all listed as business people. From his residence in Uriri, the Prosecution tabled a Migori County Government Inquiry Report on a fire incident that occurred on 24/09/2017. Also tabled was a handwritten list of 24 varied properties belonging to the Obado family. The list included the KPLC Pension Scheme Loresho house, a not finished 3bedroom house in Uriri; a quarry site and palace making plans on 6 acre land that also had kes20 million worth of equipment in Migori County; blue gum trees farm on 13 acres in North Sakwa; a jaggery plant in North Sakwa; 20acres parcel of land in South Sakwa, a filling station on Awendo/Migori Road; flats of about 20 units nearing completion in Migori; 3 bedroom house in Embakasi, Nairobi; one flat residential house in Umoja Manyanja Road; several vehicles and several parcels of land in Migori County. The witness made further reference to other documents recovered, amongst them, the County Government of Migori Central Bank of Kenya (CBK) Revenue, Development and Recurrent accounts. He also pointed out to a report on pending bills for Migori County Government as a document recovered in the Governorâs residence in Uriri. The Defence, however, raised a concern that the said report was not similar to the one supplied during disclosure. Upon counter checking with the documents supplied, the Prosecution conceded that indeed there was an issue with the scanning of documents that affected the sequence of that particular report. The matter was adjourned to allow the Defence to be supplied with the sequentially marked document. The matter is now scheduled for a virtual mention on 1st August, 2024 to confirm if the Defence will have been served with the report in issue and is fixed for further hearing on 11th, 26th and 30th September, 2024. Hon. Wakumile also dispensed with, at the request of Defence Counsel, physical attendance of accused persons going forward.
Obado, his four children and 11 othersâ fraud case resumes
8:07:2024: Hearing of former Migori County Governor, Zachary Okoth Obadoâs corruption case resumed today before Chief Magistrate Victor Wakumile at Milimani Anti-Corruption Court, Nairobi. The two-day hearing focuses on the first prosecution witness, EACC Investigating Officer, whose testimony is to, by and large, disclose how the former Governor and 11 other accused persons including his four children hatched and executed the fraud. In todayâs hearing, the witness produced documentary evidence, largely bank transactions showing how money was moved from the coffers of the County Government of Migori into those of the accused persons. Prosecution has lined up 59 witnesses to testify in a bid to prove the case against the Governor and co-accused. EACC undertook investigations in this case after receiving allegations that Migori County Government had made suspicious payments to multiple companies, totalling Kes.1.98 billion. After investigations, most payments were found to have been lawfully made in respect to executed contracts whose works were confirmed in a verification exercise. However, payments amounting to Kes235 million remained unexplained and were deemed to have been fraudulently acquired from the County Government. The unexplained amount, which the Commission found to be proceeds of corruption, including kickbacks directly sent by some companies to foreign universities as school fees for Obadoâs children as well as high-end properties purchased for the family by the said contractors, have since been recovered through Alternative Dispute Resolution (ADR), following a civil recovery suit filed at the High Court. The Commission will dispose of the seized properties by public auction in accordance with the Court orders issued by Justice Esther Maina. Should the Court find the accused in the ongoing criminal case guilty, they will be convicted and sentenced in accordance with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003, which provides for a maximum jail term of 10 years for each offence and a mandatory fine equal to two times the amount of any public funds lost or benefit acquired by the accused person. Additionally, Section 64 of the Act bans convicted persons from appointment or election to any public office for a period of 10 years. Hearing resumes tomorrow when PW1 will continue with his testimony including giving an inventory of key documents relevant to the case that were recovered from the office of Jared Odoyo Kwaga, one of the accused persons.
Prosecution discharged its burden of proof and proved its case beyond reasonable doubt – Court of Appeal judgement in Criminal Appeal No. 001 of 2022
Court thwarts Nairobi County employeeâs bid to access suit property in a forfeiture case
04:07:2024: A High Court has affirmed interim orders granted in ACEC OS E022 of 2023, EACC Vs Wilson Nahashon Kanani in September 2023 prohibiting the Nairobi City County Government employee from dealing with properties in the forfeiture suit. The Notice of Motion application dated 12th September 2023 was heard inter partes before Hon. Justice Prof. Nixon Sifuna who delivered his ruling yesterday, confirming the interim orders. Agreeing in his ruling with the orders of Lady Justice E.N Maina of 13th September 2023, Justice Sifuna further directed that the case should be fast tracked and that parties should canvass the suit by way of written submissions. The properties in question include motor vehicles and Kes48 million currently held in his bank accounts, which will be held in abeyance pending the hearing and determination of the main suit filed by the Ethics and Anti-Corruption Commission (EACC). The suit seeks to have the public officer forfeit to the Government of Kenya Kes643.2 million being assets whose sources he was unable to explain to the Commission. The said case was filed by EACC at the High Court following an investigation into an allegation that Mr. Kanani, a public officer employed as a Development Control Officer II at Urban Planning Department of Nairobi City County Government, earning a monthly gross salary of Kes88,530 and a net of Kes55, 866 had accumulated assets whose value was above his known legitimate sources of income. Investigations further established that Mr. Kanani is a co-director of Seventeen Forty-Nine Limited, trading as 1824, a popular bar and night club along Langata road Nairobi. His duties as a Development Control Officer II include regulation of outdoor advertisement, monitoring and surveillance of all outdoor advertisement and calling advertisers to comply with approvals and payments for advertisements. Mr. Kanani was found to have abused the position of trust he is occupying at the Nairobi City County Government by receiving revenue meant for the Nairobi City County Government through bank accounts held by his private companies and spouse. His bank statements revealed that there were companies that were crediting huge sums of monies into his bank accounts and those of companies associated with him. The companies paying into his bank accounts included Live ad Limited, Firm Bridge Limited, Ikon prints Media Limited, Parrot Concepts Limited, De-signtech Enterprises Limited Media-max Network Limited. A total of Kes55 million, it was established, had been paid to his private company, Willy Walla Limited, by Parrot Concepts Limited and Kes23.9 million by Media max Network Limited during the five-year period under investigation. His other assets include four high-end motor vehicles: Toyota Land cruiser V8, Mercedes Benz E 300, Mercedes Benz E350 and Toyota Alphard, all acquired in a span of only five years. Also acquired during the same period are an apartment in Nairobi valued at Kes6.5 million, a house in Busia County valued at Kes11.2 million, and land in Naivasha valued at Kes3.5 million. Investigations also established that the public officer was previously convicted of a corruption offence involving soliciting for bribes while performing the same duties with the defunct City Council of Nairobi.
EACC welcomes High Courtâs upholding of conviction of former NSSF manager and his co-accused
03:07:2024: The Ethics and Anti-Corruption Commission (EACC) welcomes todayâs High Court judgement upholding convictions and sentences of four accused persons including former NSSF Investment Manager, Francis Moturi jailed in 2022 by the Anti-Corruptionâs Chief Magistratesâ Court. Mr. Moturi was convicted in two counts of conspiracy to defraud, and deceiving principal. He was accused of defrauding NSSF of KES1.2 billion by purporting to have purchased various quantities of shares of Kenya Commercial Bank, Barclays Bank of Kenya, Standard Chartered Bank, Bamburi Portland Cement Company Ltd, Kengen and Nation Media Group at the Nairobi Stock Exchange on behalf of NSSF yet no shares had been purchased in respect of the amount. Jointly, Mr. Moturi and others orchestrated a fraud scheme at the NSSF that led to a loss of more than Kes2 billion. He was slapped with a fine of Kes1 million or 2 years in default and additional fine of Kes2.4 billion or 9 years in default. His grounds for appeal were premised on defective charges, insufficient evidence and improper sentencing. While dismissing the appeal, Justice Prof. Nickson Sifuna found that Prosecution discharged its burden of proof and confirmed beyond reasonable doubt that Mr. Moturi, in conspiracy with Discount Securities Limited orchestrated a monumental fraud against the Fund. He also found that he threw his employer under the bus, betrayed the public trust and cheated pensioners who are a significant and vulnerable segment of the society. Justice Sifuna also found that the trial Magistrate properly applied his mind on sentencing, which he found to be neither harsh nor excessive. Summarily, the judge found there was enough evidence to sustain conviction and that the accused were properly sentenced. EACC finds this case significant for two reasons. One, the colossal amount of tax payersâ money stolen from the Fund in breach of public trust. Secondly, the deterrent nature of the conviction meted out by the Magistrates Court. Notably, just like in the MP Walukeâs case, the Court imposed on the accused persons additional mandatory fine equal to twice the amount stolen as provided for under Section 48 of ACECA 2023.
The doctrine of indefeasibility of title cannot apply where title was acquired by way of fraud or misrepresentation in which the proprietor is proved to be party â Court of Appeal Judgement in CIVIL APPEAL NO. E038 OF 2021
EACC recovers prime Government property in Nakuru and Nyahururu
21:06:2024: The Commission has recovered grabbed public land measuring half an acre, with a prime Government house on it, all worth Kes40 million belonging to the Ministry of Housing and Urban Development, within Nakuru CBD. The recovered property is the 21st out of 24 prime Government house units that the Commission has been recovering in phases atSt. Xavier Estate, Nakuru, from various defendants including the family of formerMember of Parliament for Aldai Constituency Jim Choge (deceased).Recovery suits for the remaining three house units are ongoing in court. Addressing press today from the site of the recovered land, EACC Spokesperson Eric Ngumbi said that the recovered property, known as Land Parcel No. Nakuru Municipality Block 5/149, located behind Taidys Hotel in Nakuru City, had been planned, reserved and used for Government housing, known as St. Xavier Estate. EACC went to Court after the defendants failed to voluntarily surrender the property as per the demand issued by the Commission. The Commissionâs investigations established that on June 30th 1994, the then Commissioner of Lands, Wilson Gachanja fraudulently and illegally transferred the land including Government House; NKU/ HOU/ MG/27 built in 1964 to William Kimaru, who later transferred it to former Member of Parliament for Aldai Constituency Jim Choge. EACC informed the Court that at the time of the allocation of the land to the private individuals, the land was already Government property and as such, it was not available for allocation to the defendants or to any other person and therefore, all the transactions, at all the transfer stages, were fraudulent, illegal, null and void. The Judgement in favour of EACC was delivered by Hon. Justice Mwangi Njoroge of the Nakuru Environment and Land Court, who nullifiedall the transactions leading to the illegal transfer of the Government land. He also cancelledall illegal entries in the Nakuru Register and orderedthat the property be registered in the name of the Government, as required under the law. The Commission is currently pursuing the rectification of the Nakuru Land Register by the Registrar to have the illegal entries removed and a new Title Deed issued in the name of the Government as ordered by the Court. Once this process is concluded, EACC will hand over the Title to the Government. In Nyahururu Sub-County, Laikipia County, the Commission recovered public land valued at Kes110 million that some 12 private individuals had grabbed and reverted it to the County Government. The land had been reserved for the Nyahururu bus park and had been irregularly alienated to favour private individuals who had been earmarked it for the construction of a multi-million Mall. The Commission, through its Central Regional Office in Nyeri, launched investigations upon receipt of a complaint from Mitumba traders in Nyahururu Town in February 2022. The complaint was to the effect that the land reserved for extension of Nyahururu Bus Park, which they were using, had been unlawfully allocated to private developers who had commenced construction of commercial building and they were being evicted. Speaking at the site yesterday where EACC team led by its Spokesperson, Eric Ngumbi had visited, Nyahururu Mitumba Traders led by their Chairman Peter Maina Mwangi thanked EACC for saving them from eviction by the grabbers. They urged the Commission to assist in recovery of all the other plots grabbed in the area. They also called upon the County Government to develop the land recovered by EACC for use by the traders. âWere it not for determination and the zeal to pursue the matter in court and with the relevant agencies, the land could have been grabbed and developed. This would have denied us a place to conduct their businesses,â said Maina. Investigations had shown that the land in question had been donated by the Catholic Archdiocese of Nyeri for the construction of Ngare Naro Primary School in 1972. However, in 1984 the now defunct Nyandarua County Council working with the then commissioner of lands hived off 2 acres for the expansion of the Nyahururu bus park with a disclaimer to the school that if the land was not used in the expansion of the bus park it would be reverted to the school. Through underhand dealings, the Nyandarua County Council working with the then commissioner of lands subdivided the land into 12 portions and issued letters of allotment to private individuals. Through the Alternative Dispute Resolution (ADR) negotiations, the defendants who were the allottees agreed to voluntarily surrender the title documents to the commission. Six allotees had already begun developing the parcel of land in a joint venture to construct a shopping mall and were at the foundation stage by the time the EACC struck. Following the finalization of the ADR Process in November 2023, the Court delivered a consent Judgement and issued declarations and orders revoking all the titles held by the 12 individuals. The Court further issued a permanent injunction restraining all the defendants, their agents, servants or any other person acting on their behalf from any dealings with the land except by way of surrender to the Government.
EACC recovers, on appeal, land belonging to Kenya Revenue Authority in Mtwapa
21:06:2024: The Court of Appeal sitting in Malindi has today affirmed a Land and Environment Courtâs judgement in Mombasa ELC Cases No 215, 216, 217 to 2024 of 2019 (Consolidated) of November 12th 2020 that was delivered in favour of EACC and that reverted to the Government a prime property constituting 10 plots in Kilifi. The High Court judgement had also slapped a former Lands Commissioner, Wilson Gachanja with a Kes1 million fine and ordered defendants to remove all developments on the suit property within 30 days from November 12th 2020 or risk losing it to the Government entity that would have taken over the suit property. EACC had filled the consolidated suits against Frann Ltd, Victor Wahome, Edward Kagume, David Mwangi and Wilson Gacanja, to recover land reserved for use by the East African Customs & Excise Department, the predecessor to Kenya Revenue Authority (KRA). It was the Commissionâs case that the ten properties were sub-divisions of LR.No.MN/III/293 which had been reserved for the said Department as a watch tower and a resting place for officers on patrol. The properties are situated not far from Mtwapa Creek hence its strategic importance to KRA. The Commission successfully sought declarations that the conversion of and renumbering of LR. No. MN/III/293 to LR.No.MN/III/2974 and creation of sub-divisions thereof, the making of a grant in respect of LR.No.MN/III/2974 to Victor Wahome who was incidentally a former employee of KRA, and the transfer thereof were irregular, fraudulent, illegal, ultra vires the former Lands Commissionerâs statutory power and, consequently, null and void. EACC had also sought orders of rectification of the register and cancellation of the grant made to Victor Wahome in respect of LR.No.MN/III/ 2974 dated 29th July 1996 and registered on 4th October 1996; and of the transfer dated 11th April 2007 and certificate of title registered on 19th April 2007 in respect LR.No.MN/III/3657. Additionally, the Commission had sought orders permanently restraining Frann Investment Ltd and the other six defendants from dealing with the suit property, and for general damages as against Mr. Gachanja for fraud and breach of his fiduciary duties. According to EACC, the original property, LR.No.MN/III/293-Kilifi District was illegally allocated to a Mr. Kenny Mohammed Sheikh Ali (now late), on 8th February 1995, as it was not available for alienation. This was after Mr. Ali had applied to the Commissioner of Lands to be allocated LR.No.MN/III/293 on the ground that he had done a lot for KANU (the independence and ruling political party at the time) and had not benefited from the fruits of independence. The parcel belonged to the Department of Customs which had erected a customs outpost tower thereon and there was no record of formal acceptance or compliance with any of the conditions on the letter of allotment. Despite evidence that the land was not available for alienation, Mr. Wilson Gacanja, on 8th February, 1995, caused to be issued a letter of allotment to Mr. Ali who before acquiring title to the property, sold it to Mr. Wahome who proceeded to process the grant. Upon acquiring the properties, Mr. Wahome transferred them to a company by the name Frann Investment Ltd which he co-owned with his wife and his three sons and developed on part of it a five story building comprising 10 flats. On November 12th 2020, Justice Munyao Sila of Environment and Land Division of the High Court in Mombasa found that there was evidence that the land was not available for alienation and that Mr. Gachanja had no authority in law to make the alienation. The Court found that the purported alienation was null and void. Aggrieved, the defendants filed an appeal raising eight grounds, which the appellant court summed up into two issues; the propriety of the finding that the suit properties were not available for allocation and alienation; and whether the Appellant was an innocent purchaser for value. On alienation of the suit property, the appellantâs counsel submitted, among others, that the applicable law with regards to the registration of the Appellantâs interest in the suit property was section 23 of the Registration of Titles Act (since repealed), which vested the Appellant as registered owner with absolute ownership of the leasehold interest described in the Certificate of Lease. That title could hence only be impeached if the Appellant was found to have committed fraud in the process of acquiring the suit property. EACC, counsel for the Appellant argued, had not demonstrated any fraud or misrepresentation on the part of the Appellant or at all. The Appellant submitted that it was not in dispute that the suit property was first allotted to Kenny Mohammed Sheik Ali (deceased), who then sold and transferred it to Francis Wahome, and that the trial Court erred in holding that the registration of the suit property was unlawful when the estate of the first allotee was not made a party to the suit property. Counsel also urged that the law placed a presumption of legality on actions done by public officers so as to deem the public officer as having followed due procedure unless proved otherwise. The allotee, EACCâs counsel countered, was not the registered owner of the suit property and, being a mere allotee, had not yet obtained proprietary interests and, therefore, had nothing he could sell. The suit property, he also argued, was not available for alienation as there were two customs houses thereon, proving that the land was planned, reserved, set aside and in actual use by the Department of Customs and Excise. The doctrine of indefeasibility of titles, the Court of Appeal averred, applies with respect to the effects of registration of land of the repealed Registration of Titles Act. It provides that âthe certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to