It is 12 years in jail for Waititu or Sh53.5 million five as court jails former governor, three others over Sh588m fraud

Former Kiambu Governor Ferdinand Waititu will celebrate his Valentine’s Day in prison custody after he was jailed for 12 years or in the alternative, pay a fine of Ksh 53.5 million for engaging in corruption deals that led the county to lose Ksh 588 million in road construction projects.

His wife Susan Wangari was fined Ksh 500,000 or one-year imprisonment.

Anti-Corruption Court Chief Magistrate Thomas Nzioki further slapped a contractor Charles Chege with a fine of Ksh 294,500,000 or nine years in prison.

The wife of Chege, Beth Wangechi was fined Ksh 1.4 million or served two years and four months in prison for corruptly handling Ksh 1.4 million being public coffers received by their company Testimony Enterprises Limited (TEL) which was awarded the roads tender.

Luka Wahinya Mwangi, the former county chief officer for Roads was fined Ksh 21 million or seven years imprisonment.

In addition, all the five accused persons were prohibited from holding public offices for a period of 10 years.

The magistrate said that “under the Economic Crimes and Anti-Corruption Rules anyone convicted for corruption is barred from holding public office for 10 years from the date of sentence.”

He discharged sureties and cash bails that was deposited by the convicts to pave way for their jail terms to commence.

The magistrate convicted the five yesterday for corruptly enriching themselves from a road construction tender issued to Testimony Enterprises by the county government in February 2018.

The court, however, acquitted them from charges of money laundering with the magistrate holding that having convicted the suspects on charges of conflict of Interest, abuse of office and dealing with suspect property, it was oppressive for the prosecution to press charges of money laundering.

The tender worth Ksh 588,198,328 was for the upgrading of various gravel roads to Bitumen surface in Thika, Limuru, Gatundu North, Juja and Ruiru sub-counties. The tender was awarded to Testimony Enterprises Ltd.

In his judgment, the magistrate said the former governor failed to honor the oath of office and to safeguard public funds.

He also dismissed Mr Waititu’s defence that the case was a political witch-hunt by the previous Jubilee administration over his political relationship with now-President William Ruto.

“Having painstakingly evaluated the evidence presented by the parties and on careful consideration of the submissions, I am convinced beyond any reasonable doubt that the Prosecution has proved the charges against the accused persons,” said the magistrate.

He added that “the wiring of monies from the account of Testimony Enterprises Limited to accounts of companies associated with Waititu and his wife establish a relation whose sole motive was to siphon public coffers. There is nothing political here. Figures do not lie. Why did he receive over Sh25.6 million from Chege?”

The prosecution proved its case by pinning the accused persons in the corruption scheme through 32 witnesses and 129 documentary exhibits.

The court found that Waititu acquired private interest in the contract by receiving Ksh 25.6 million from Testimony Enterprises. The money was channeled through to him personally by the company’s director Charles Chege. It was wired to his companies, Saika Two Estate Developers, Bienvenue Delta Hotel Ltd and Lake Naivasha Resort.

The magistrate dismissed the defence by Waititu and his wife that the money received from Testimony Enterprises was payments for services rendered such as hotel conference, accommodation, meals and supply of petroleum.

“Their defence is self-incriminating and bears admissions that Bienvenue Delta Hotel, a business name owned by the governor and his wife was directly trading with Testimony Enterprises Limited by supplying oil, petroleum products and offering conference and catering services,” said the magistrate.

He continued: “The defences raised by Mr Waititu, his wife and Mr Chege fails to account for the cheques and funds transfer disbursements made by Testimony Enterprises Limited”.

“In my view, these defences, although conflicting, contain unequivocal admission of business dealings between Testimony Enterprises Limited, its director on one part and Mr Waititu’s entity Saika Two Estate Developers.

Further, the magistrate detailed how the road project contract was procured fraudulently and awarded to Testimony Enterprises Ltd, who is an acquaintance of Waititu and his wife.

“Testimony Enterprises Limited won the tender by manipulation and procurement fraud perpetrated by Eng. Luka Mwangi Wahinya (former Roads Chief Officer) and the Tender Evaluation Committee. The inclusion of new criteria during the tender evaluation, serialization and form of tender gave Testimony Enterprises Limited undue advantage against the other four bidders,” he said.

He observed that Mwangi manipulated the process of procurement contrary to section 74(1)(i) of the Public Procurement and Asset Disposal Act, 2015 by omitting serialization and form of tender in the bidding process.

“I have no doubt that the Prosecution has established that Testimony Enterprises Limited won the tender in question by deceit and procurement fraud with the aid of Eng. Luka Mwangi and the Tender Evaluation Committee. In the circumstances, Eng. Luka Mwangi and Mr Charles Chege joined the rank of the first two architects of the corruption scheme which is the subject of the present case,” said magistrate Nzioki.

Mwangi was convicted for abuse of abuse as he was “at the centre of the flawed procurement process leading to the award of the road project tender to an unqualified form, Testimony Enterprises”.

The magistrate declared the tender as illegal, null and void stating that it was won fraudulently as Mr Chege used forged academic credentials showing that his company had skilled personnel to undertake the contract.

He ruled that Testimony won the tender based on falsified documents and fake partnership agreements with a Chinese firm, China Wu Yi Company Limited. This is after Chege, the director of Testimony Enterprises, admitted submitting the forged documents to secure the contract during his defence

The prosecution informed the court that Chege had forged documents from University of Nairobi and Jomo Kenyatta University of Agriculture and Technology.

The court added that Chege falsified documents showing his company had previously been subcontracted by a Chinese construction firm to undertake a similar contract. He did this proof that Testimony Enterprises had the capacity to perform the contract.

However, the magistrate found that based on evidence adduced by the Prosecution Testimony Enterprises lacked the capacity to undertake the multi-million tender.

“By dint of the provisions of section 66 (1) as read with section 66 (3) (b) of the Public Procurement and Asset Disposal Act, 2015 the contract is voidable. It is trite law that a contract procured by fraud is illegal, null and void ab initio. This legal proposition is supported by the decision,” said the magistrate.