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Court clears Nyeri ex-PSB members of corruption charges

Thursday December 5 2019

Former Nyeri PSB members

The then members of the Nyeri County Public Service Board and two ward administrators appear before a Nyeri magistrate's court on September 26, 2018 on allegations of abuse of office. PHOTO | JOSEPH KANYI | NATION MEDIA GROUP 

JOSEPH WANGUI
By JOSEPH WANGUI
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Former members of Nyeri County's Public Service Board were on Thursday acquitted of corruption-related charges following allegations of abuse of office and irregular hires.

Senior Principal Magistrate Phillip Mutua found that the evidence the Ethics and Anti-Corruption Commission presented only raised suspicion.

“The totality of that evidence, at best, only raises suspicion, but suspicion alone, however grave, is insufficient to establish guilt beyond reasonable doubt," Mr Mutua said in his ruling.

"What the prosecution did in this case was to collect information and place it before court without any attempt to [align it with the] offences the accused persons are charged of."

As such, the court said, the ex-officials - chair Alice Waruguru Muita and members Anthony Ndonga Muriu, Beatrice Wanjiru Gikaru, Geoffrey Wachira Mahinda and Shelomith Wanjiru Nderitu - did not have to take the stand.

CHARGES DEFECTIVE

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The prosecution said the board members conspired to hire two unqualified persons to senior positions in the county government.

They allegedly hired Mr George Mwangi Muriithi and Phares Kabugi Njogu as ward and sub-county administrator, respectively, knowingly they were not qualified to hold the offices.

But the magistrate concurred with the accused’s lawyer, Mr Wahome Gikonyo, who said there was no offence in hiring the two since the Constitution did not require them to meet specific academic qualifications.

The lawyer told the court that Section 50(2) of County Governments Act, 2012 states that a sub-county administrator is required to have knowledge in administration or management.

Under section 51(2), the Ward Administrator is required to have professional qualifications and technical knowledge in administration.

“I agree with Mr Wahome that the charges were defective in as far as they didn’t refer to the section rule or regulations," the magistrate said.

He noted that it would have been sufficient if the flouted regulation or rule setting out the qualifications was mentioned in the particulars of the offence.

GUIDELINES

The court heard that on August 2, 2013, an advertisement for various posts was published, following preparation of a draft by Transition Authority officials, in accordance with career progression guidelines of the Public Service Commission (PSC).

The prosecution’s evidence indicated that the accused persons failed to comply with the these guidelines.

But the court noted that they were created in 2014 and 2017, so the board members could not be accused of failing to comply with conditions that did not exist at the time they allegedly committed the offences.

“A look at County Governments Act, 2012, Sections 50(2) and 51(2), and the qualifications held by George Muriithi and Phares Kabugi, shows that they are both qualified, if not overqualified," the magistrate said.

"They are only unqualified when the qualifications set out in the PSC Career Progression Guidelines 2014 and 2017 and the advertisements are compared.”

He said the only applicable laws sections 50 and 51 of the County Governments Act.

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In his submissions, Mr Wahome said that under Section 63(1) of the County Government Act, 2012, the powers of the board in making appointments are subject only to the Constitution and legislation.

Section 65 of the Act sets out the maters the board is to consider in making appointments and under Section 70(1), it is stated that the board is governed only by the Act and regulations and procedures made under the Act.

“It is clear that an advertisement containing qualifications, which are not themselves set out in the Act or regulation or procedure made under the Act, is not binding on the board," the court ruled.

"Obeying the same would actually be contrary to the express provisions of the Act. The same applies to career progression guidelines, unless they are themselves regulations made under the Act."

The magistrate further stated that in law, advertisements and career progression guidelines cannot purport to overrule, nor can they take precedence over, the clear provisions of the Act.

CONSPIRACY CHARGE

On the charge of conspiracy to abuse office, the magistrate said there was no evidence that the accused had any agreement to hire unqualified people since when the recruitment started, only the chairperson was a member of the board.

“It is necessary to show that they were all in agreement and had consensus to hire unqualified persons. There was also no evidence that they agreed to jointly hire unqualified people,” said the magistrate.

The court ruled that the ex-officials' two co-accused, who were charged with forging academic documents, had a case to answer.

Mr Johnson Njogu Kiongo and Jackson Kibutu Thagana will defend themselves on February 2, 2020.