Former CBK governor has a case to answer, says Tobiko

There is enough evidence to charge former Central Bank of Kenya Governor Njuguna Ndung’u over a disputed Sh1.2 billion tender.

Director of Public Prosecutions Keriako Tobiko in his submissions filed before Court of Appeal judges Wanjiru Karanja and Daniel Musinga said he was satisfied with the evidence before him showing Prof Ndung’u used his office to pull strings in favour of Horsebridge Networks, an Information Technology firm. “It (evidence) can sustain charges against him.”

Also, Court of Appeal Judge Lady Justice Agnes Murgor withdrew herself from hearing the appeal. She disqualified herself in what she termed as conflict of interest, having acted for the CBK when she was in private practice. “I acted for the Central Bank of Kenya when I was in private practice and cannot therefore sit in an appeal case touching on the bank. I therefore withdraw myself from hearing the case,” said Murgor.

Prof Ndung’u through lawyer Cecil Miller did not oppose the judge’s withdrawal but requested that another judge be appointed immediately to enable expeditious hearing of the appeal.

Keriako in his submission told the court that CBK did not appeal against the decision by Public Procurement Administrative Review Board (PPARB), a decision that led to Horsebridge getting the lucrative tender.

The DPP in his written submission claimed Njuguna turned a deaf ear to the advice given to him by CBK external lawyers, CBK’s own legal services division and other officials including the Deputy Governor to appeal the PPARB decision.

“The DPP was therefore satisfied on the evidence that the appellant (Ndung’u) used his office to improperly favour Horsebridge in terms of section 46 of ACECA and accordingly directed that the governor be charged with abuse of office,” the court papers read in part.

“The DPP’s decision was based on sufficient evidence to charge the appellant and was not actuated by any extraneous consideration and did not violate the appellant’s fundamental freedoms and rights and neither was it done in a manner likely to amount to abuse of Court process or breach of natural justice.”

However, in a rejoinder, Prof Ndung’u told the court he was a victim of a vicious witch-hunt. He told the Court of Appeal that he did nothing wrong to warrant prosecution over claims of abuse of office.

Prof Njuguna in his submissions said that even if CBK had appealed against the board’s decision, there was no guarantee that the High Court would have set it aside. He said that although CBK was the procuring entity, PPARB gave the tender to the lowest bidder and the losers never raised any alarm over the whole process or challenged the same in court.

Court of Appeal judges also heard that Ndung’u’s hands were tied by High Court order that forced CBK to sign the deal with Horsebridge.

“The best suited persons to challenge the award of the contract to Horsebridge were the other entities that had participated in the tender process. None of them complained about the award to Horsebridge since the contract had been awarded to the lowest bidder,” Ndung’u’s papers read.

They continued: “Central Bank of Kenya did not have reason to challenge the same. If Central Bank of Kenya challenged the award made to the lowest bidder, this would have amounted to bad faith on its part.” The former governor’s stand before the Court of Appeal was that the legal opinion by the external lawyers was then in conflict with the factual position.

He said the opinion was unsustainable.

This article was published by THE STANDARD on Sep 29, 2016