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

Judge pulls out of ex CBK boss Ndungu’s case

A judge has disqualified herself from a case where former Central Bank of Kenya (CBK) Governor Prof Njuguna Ndungu is urging the Court of Appeal to block the Director of Public Prosecutions from prosecuting him in the Sh1.2 billion security tender award for the bank.

Lady Justice Agnes Murgor disqualified herself saying “she acted for the CBK when she was in private practise and cannot therefore sit in appeal in the case concerning it.”

Lawyer Cecil Miller for Prof Ndung’u did not oppose Justice Murgor recusing herself but asked the matter be allocated an early hearing date.

Justice Murgor was sitting with Justice Wanjiru Karanja and Justice Daniel Musinga when appeal suffered the hurdle.

Prof Ndung’u who picked Miller to represent him is challenging the decision of the Director of Public Prosecution (DPP) Keriako Tobiko to charge him in the Sh1.2 billion security tender award for the bank.

Mr Miller took over the case from lawyer Donald Kipkorir who was representing the former top banker when the case was being heard at the High Court.

The case was adjourned again on July 28 when it was called for hearing before Justices Kantai ole Sankale , Jamila Mohamed and Philomena Mwilu, Miller then told the court “ I have just received instructions and need time to acquaint and familiarize myself with the legal issues.”

He said he needed time file his submissions in answer to the issues raised by the DPP.

The judges allowed Miller’s request and directed him to file submissions within ten days.

The court also allowed the Ethics an Anti-Corruption Commission to respond to the issues raised by Miller within seven days.

Professor Ndungu filed an appeal after his application for judicial review seeking to bar his prosecution was dismissed by the High Court.

Justice George Odunga dismissed the application challenging the criminal trial and consequently allowed DPP and EACC to prosecute him over the tender award.

The judge said that it’s the trial court, that was best placed to determine the allegation and that Professor Ndungu will be given humble time to defend himself.

“I am therefore not convinced there is sufficient reason to stop the impending prosecution. He will be given a fair chance to defend himself at the trial,“ Justice Odunga said.

Professor Ndungu was not satisfied with the judgement of the superior court and he filed an appeal seeking to have the impending trial a nullity.

This article was published by CAPITAL FM NEWS on September 28, 2016

Kenya Railways moves to court to reverse SGR ruling

Kenya Railways Corporation has moved to court seeking the reversal of orders issued by the Mombasa High Court to halt part of the construction of the standard gauge railway.

Through lawyer Cecil Miller (pictured), the company said the public interest outweighs that of private owners.

“The learned judge erred in law and in fact by granting the conditional conservatory orders without appreciating the amount of time taken for disbursement of funds by the National Treasury,” he said.

Prof Ndungu’s appeal in Sh1.2bn tender case set for September

Former Central Bank Governor Prof Njuguna Ndungu has appointed Cecil Miller to represent him in the Court of Appeal where he is challenging the decision by DPP to charge him over the award of Sh1.2 billion security tender for the bank.

Miller takes over from Donald Kipkorir who represented Prof Ndungu at the high court over the same matter.

When the case came up for hearing on Thursday before Justice Sankale Kantai, Justice Jamila Mohamed and Justice Philomena Mwilu, Miller told the court that he had just been instructed and needed time to file his submissions.
The court allowed his application for adjournment and directed he files his submissions within 10 days; DPP and EACC do so within seven days.

The bench further directed that the date for the hearing of the appeal be taken on priority basis in the month of September 2016.

Professor Ndungu moved to Court of Appeal after his application for judicial review was dismissed by the High Court.

Justice George Odunga dismissed the application challenging the criminal trial and consequently gave the EACC and DPP the green light to prosecute him.

The judge said that it’s the trial court, that is best placed to determine the allegation and that Professor Ndungu will be able to defend himself efficiently before the magistrate.

“I am therefore not convinced there is sufficient reason to stop the impending prosecution it is highly and likely that he will be accorded a fair trial,” he said.

This article was published by CAPITAL FM NEWS on July 28, 2016

Railway agency asks court to allow SGR construction to continue

The Kenya Railway Corporation (KR) has gone to court to overturn orders issued against the construction of a standard gauge railway at Miritini.
KR says the national government will lose Sh30 million per day if the orders remain in force. Lawyer Cecil Miller told judge Anne Omolo that since the day the orders were issued, the construction company, China Road and Bridge Construction, has been losing Sh30 million per day maintaining the equipment and other activities on site.
Miritini Free Port had gone to court to stop the construction of the railway on its land after the Government through the National Land Commission failed to pay the Sh1.4 billion in compensation fees it was awarded. “It is in the public interest that this order granted by this court be vacated to allow the construction of the railway to proceed so as to stop taxpayers from losing Sh30 million per day,” Mr Miller told the court.

He said KR had partnered with the construction firm to build the railway, and it had mobilised equipment on the plot and if the orders remained in force, some of the equipment would rust. Public interest “This order is against public interest because the money being lost belongs to the taxpayers,” he added.
China Road lawyer, Wamuti Ndegwa, denied claims that his client had disobeyed a court order and applied to have the company ordered to pay the losses the construction company was incurring every day. And the National Land Commission lawyer, Simon Mbuthia, submitted that Miritini Free Port owners had not been compensated because there was a dispute over the land, which was raised by the county government, which questioned the rightful owner of the land.

“Upon receipt of complaints from the County Government of Mombasa over the propriety, NLC conducted a review process to establish whether the petitioners are the legitimate owners of the suit land,” said Mr Mbuthia.

Mbuthia accused Miritini Free Port directors of failing to disclose to the court the true status of matter when they sought ex parte orders. He said since the court was now aware that there was a dispute over the rightful owner of the land, then the stay order the company was given should be vacated to allow NLC find out whether the company should be compensated.

Last week, Miritini Free Port lawyer Michael Oloo successfully applied for an injunction against the construction of the railway, complaining that his client rights had been violated by not compensating them.

This article was published by the STANDARD NEWSPAPER on Jul 8, 2016