Dave Mwangi (Internal Security)David Onyonka, former head of debt management at the Treasury,former Finance secretary Samuel Bundotich,businessman Deepak Kamani and Brother Rashmi Kamani before the Nairobi Anti-corruption court after former Cabinet Minister for finance David Mwiraria aw slapped with arrest warrant on Monday 23 November,2015.
BY SAM ALFAN.
Former President Mwai Kibaki powerful Cabinet Minister for finance David Mwiraria is facing imminent arrest after a Nairobi Anti-corruption court ordered he appears in person before it though he is alleged to be terminally ill.
Principal magistrate Felix Kombo issued the arrest order against Mwiraria following application by senior assistant Director of Public Prosecution Nicholas Mutuku that the former cabinet minister is now well to plead to the charges against him.
But the magistrate later temporarily stayed the warrant of arrest against Mwiraria until this morning (Tuesday) after his lawyer pleaded with the court to give him time to present him or documents showing he is admitted in hospital.
Lawyer Ismael Mohammed asked the magistrate not to sign arrest warrant and give him time to obtain other medical documents or present Mwiraria in court this morning.
The magistrate at the same time said that the court may be forced to proceed to the alleged hospital and take plea from Mwiraria if is true he is being hospitalized.
Mwiraria failed to turn up in court to take plea on Anglo leasing case despite a doctor’s report indicated he could withstand trial which prompted the Magistrate to issue a warrant of arrest.
While applying for warrant of arrest, Mutuku told the court that Mwiraria has not complied with earlier court order to appear in court on Monday for purpose of taking plea in the case.
He said that Mwiraria was served with court summons requiring him to attend court after doctors declared him fit to stand trial. Mwiraria had been earlier granted 90 days to rest before taking plea which days expired in July, 2015.
The court was informed that the DPP position is that Mwiraria should take plea, according to medical report he is now fit for plea taking.
The magistrate said he had to appear before the court even if ‘he will be brought in an ambulance.’
“We want to see the accused in court in person even if it means him being brought in an ambulance. If it is proven he is really unable to come we will go see him in hospital. That is how serious we are with this case,” Mr Kombo said.
Mr Abbas had asked the court to look at the medical report before giving any directions.
“Your honor the report before you clearly indicates the health condition of my client. It says he cannot sit for a session above thirty to sixty minutes,” he said.
However Mr Kombo said the court would not review the report since it had been presented in September and did not include the current situation of Mwiraria.
The court was informed that the DPP position is that Mwiraria should take plea, according to medical report he is now fit for plea taking.
However, the magistrate allowed the prosecution request and issued summons for Mwiraria to appear in court for plea taking but he failed to appear in court.
On June 26, 2015 the court directed that the ailing Mwiraria be tested by a government doctor to ascertain if he can be arraigned in court to face corruption charges related to Anglo Leasing saga.
The court requested for an independent report alongside that of his doctor Prof Peter Ndagwatha, which indicated that the minister is critically ill and therefore, not fit to be on the dock.
His lawyer Kioko Kilukumi, told the court that the former powerful minister is battling with cancer in hospital. “Mr Mwiraria is terminally ill. He has been having cancer for a long time and thus we
are suggesting that we mention the case in a month’s time to have a report from his doctors and those who will be appointed by the prosecution,” Kilukumi said.
The former minister is to face charges together with 13 other individuals for their role in the multi-scam, but he never appeared on grounds that he was in hospital.
He is jointly charged alongside businessman Deepak Kamani, his father Chamanlal Kamani and Brother Rashmi Kamani who were present in court on Monday during the proceedings.
The other accused persons included Kisii Senator Chris Obure, former Postmaster General Francis Chahonyo and former PSs Sammy Kyungu (Communication), Joseph Magari (Treasury) and Dave Mwangi (Internal Security) and David Onyonka, former head of debt management at the Treasury, and former Finance secretary Samuel Bundotich.
Mwiraria alone is faced with four counts of conspiracy to commit an economic crime and to defraud the government of Sh4.08 billion.
Another count reads that he is accused of engaging in a project without prior planning. He is also accused of allowing the financing of a project intended to upgrade police and other security systems
dubbed ‘E-Cops’ valued at Sh6.08 billion.
The former minister resigned from the finance docket in 2006 after he was adversely cited in a report on graft by the then adviser to former President Mwai Kibaki on ethics and integrity John Githongo.
The Kamani’s are named among companies that were awarded 13 out of 18 Anglo Leasing security contracts.
The Kamini’s family who are facing criminal trial over the Anglo Leasing scandal,lost their bid to quash the anti corruption case
High court Judge Justice George Odunga, dismissed the application for judicial review on grounds that the applicants Kamni’s did not demonstrate to the court they will get fair trial.
The judge said allegation brought against them can only be determined by the trial court as the judicial review court can not interfere wit matter before the lower court if it has not been shown that justice will not be rendered to the applicants.
Justice Odunga further said from the evidence shown by the office of the DPP indicates that despite the fact that former AG Amos Wako gave an opinion over the contract it appears fraudulent acts happened during the execution of the contract.
He said that its for reason the government terminated the contracts, saying he his not the position to determine what exactly happened that is for the trial court which will receive evidence from the prosecution.
The judge further held that he can not overturn the decision of the DPP to charge them without evidence being adduced
Justice Odunda said that. Deepak Kamani, his brother Rashmi Kamani and their father Chamanlal Kamani have denied having links with companies that were awarded the contracts.
It will upon the prosecution before the trial court to prove them wrong on their defence.
The companies listed as having benefited from the Sh18 billion contracts were Sound Day Corporation, Apex Finance Corporation, Anglo Leasing and Finance Limited, Infotalent Limited, Globetel Incorporated and Midland Finance and Securities Limited.
The Anglo leasing contracts which link the Kamanis family to corruption case was signed with the consent of several former government ministers the court was told during hearing of the judicial review application,
The contracts were not signed secretly has claimed by Ethics and Anti- corruption commission.
Lawyer Ahmednasir Abdullahi had told the court that the criminal case brought against his clients is selective and very many people who were involved in the signing of the contracts were left out of the indictment.
The court that the government through its chief legal adviser having his opinion of the contract and gave it clean bill of health a criminal case can not be preferred against his clients.
The former attorney general Amos Wako was satisfied that commercial contracts signed by the companies which were properly registered can not be said to have involved in corruption.
The criminal case is brought in bad faith and the court issue an order to have it quashed.
They are linked to companies that were awarded 13 out of 18 Anglo Leasing security contracts. The remaining five went to Sri Lankan businessman Anura Perera, who was since been paid Sh1.4 billion by the government
