Suspects arraigned over KPA retirement scheme fraud

A day after the public prosecutor approved corruption charges against trustees and a lawyer of the Kenya Ports Authority Retirement Benefits Scheme, several of the suspects were arraigned at the Mombasa Law Courts.

A Mombasa member of county assembly is among the eight suspects in the case concerning a fraudulent sale agreement for the purchase of 100 acres of land in Kikambala, Kilifi County, at Sh700 million.

PLEA-TAKING

Mikindani MCA Renson Thoya was arraigned alongside Fredrick Otieno, Maurice Milimu, Joan Zawadi , Harry John, Joy Kavutsi Mudavadi, Joseph Kanyi, Jane Njeri and Ephraim Maina.

The suspects appeared before Mombasa Senior Principal Magistrate Charles Ndegwa.

Through their lawyers, led by Gikandi Ngibuini, they opposed their prosecution and said they will file a case at the High Court in this regard.

“We pray that the plea be deferred to later than February 14 so the suspects can file necessary documents to challenge the constitutionality of the charges,” Mr Ngibuini added.

The prosecution followed a probe by the EACC, which recommended charges of conspiracy to commit an economic crime, abuse of office, fraudulent acquisition of public property, dealing with suspect property and breach of public trust.

CIVIL SUIT

Mr Ngibuini told the court that it was wrong for the director of public prosecutions to institute criminal charges against his clients while aware of a civil suit by the EACC at the High Court.

He also accused DPP Noordin Haji of acting in malice and over-exercising his powers by recommending their prosecution, while aware of the civil case on the same matter.

“The DPP is acting in utter abuse of powers. If the court allows the suspects to be charged, it will create a tragic comedy of error," Mr Ngibuini said.

William Mogaka, who is also representing the suspects, added, "A joint account has been formed between advocates of the EACC and those of the accused to resolve the issue. We urge the court to promote the alternative dispute resolution mechanism that parties have resolved to pursue."

The suspects further said that should their plea-taking be deferred, they will be able to tell the High Court why they should not be charged.

NEGOTIATIONS

The DPP, through principal prosecution counsels Jami Yamina and Hellen Mutellah, said he was not opposed to negotiations but that this can only be after the suspects plead to the charges.

Mr Yamina noted that the negotiations can only be between the DPP and an accused person, not people not party to matters before the court.

“Once the plea is entered, we may enter negotiations, which should be within the scope of the law. It should be noted that the DPP is not party to civil proceedings against the suspects in Nairobi,” he said.

Regarding the EACC, the prosecution said that if a consent on the recovery of the money exists, it would be supportive of that line action, provided it is based on laws.

Ms Mutellah said the suspects had not honoured the consent by depositing the agreed amount within 10 days in the escrow account.

In their defence, the accused said this resulted from internal challenges at the commission.

Mr Ndegwa ordered the suspects to pay Sh200,000 each as cash bails or Sh1 million as bonds, with sureties of the same amounts, ahead of the ruling on their application.

THE CHARGES

The suspects will be charged with conspiracy to engage in corruption, breach of public trust, abuse of office, fraudulent acquisition of public property, dealing with suspect property and money laundering, as the DPP directed on Wednesday.

It is alleged that between October 24 and December 18, 2014, they conspired to defraud the scheme of Sh700million by unlawfully approving the purchase of the land near Vipingo.

In the first count, they and Seline Consultants and Kikambala Development Company will be charged with conspiracy to commit an offence of corruption.

Mr Milimu (pension administrator) and trustees Ms Zawadi, Mr Thoya, Mr John, Ms Kavutsi and Mr Otieno are facing charges of breach of trust and abuse of office.

They allegedly used their office to improperly confer a benefit to wit Sh1.1 million on Centenary Valuers and Hallmark Valuers by directly engaging them in land valuation without following procedures.

Mr Milimu faces another charge of using his office to improperly confer a benefit to wit Sh603,000 on Pivot Valuers by directly engaging the said valuer to value the land without adhering to the procurement process.

Scheme chairman Otieno will face the charge of abuse of office for allegedly using Cemtec Engineering to transfer Sh18.9million for the fencing of the plot.

Lawyer Joseph Kanyi, of Kanyi J & Company Advocates and Kikambala Development director Jane Njeri Karanja will be charged with conspiracy and money laundering.

The ruling on whether the suspects will take plea will be delivered on January 14, 2019.