BY SAM ALFAN.
A former chain supply assistant convicted in relation to the Sh 791 million NYS I scandal has filed an application before the high Court appealing decision by Nairobi Anti-Corruption court to sentenced him to four years .
In a certificate of urgency the convict Salesio Karanja who is still in prison serving his jail term after failing to raise a fine of Sh 4 million argues in appeal that trial magistrate Kennedy Bidali erred by in law and by falling to appreciate that the charges he was facing were unknown in law.
“The trial magistrate erred in law and misdirected himself by failing to appreciate that the charge sheet was fatally and incurably defective and by proceedings to convict and sentence me based on the same,” says Karanja.
He further argues that he is a elderly man who requires urgent specialized medical attention as he is not likely to get it in the prison facility.
In his appeal court papers, he also claims that on January 17, the trial Magistrate erred in both law and fact by delivering undated judgment in contravention of the mandatory provisions of criminal procedure by proceedings to convicts the appellant on a null and ineffectual judgment.
The magistrate convicted Karanja also a former secretary of a open tender committee and a church elder after finding him guilty of fraudulent procurement practice involving a private firm that received a tender relating to Sh47.6 million. He was further barred from holding any public office.
He further argues that the learned magistrate erred by failing to take into account, appreciate and raise issues with the prosecution’s failure to call material, competent and compellable witness without ascribing any reason or explanation to the sums and by failing to draw an adverse conclusion against prosecution for such failure.
The convict argues that the magistrate misdirected himself by failing to appreciate and acknowledge the glaring contradictions on the prosecution which clearly and definitely raised reasonable doubts on the prosecution’s case.
He accuses the magistrate of misdirected itself by positing non-existing issues for determination and failing to posit the true points of determination in law thereby arriving to a wrong conclusion.
He accused the trial court of ignoring the evidence on record when he found that the bid by Dama Services Limited was not in the box during the opening and arrived at a totally wrong conclusion.
Karanja further says tender committee has no powers to reject any bid received including those by authoritirized and unapproved companies.
“Prior and during the tender opening, the tender opening committee members are not normally aware or notified of the companies which have invited and approved to submit bids or participate in the tender due to opening,” says Karanja.
He was convicted after the court found that the prosecution proved the graft charge against him beyond reasonable doubt.
The convict had earlier been charged together with for former Devolution and Planning Permanent Secretary Peter Mangiti, former NYS Deputy Director General Adan Harakhe and former Ministerial Tender Committee chairman Hassan Noor and 20 others who were acquitted on March last year for lack of evidence.
Bidali acquitted them of the charge of conspiracy to commit economic crime after he ruled that the prosecution failed to provide sufficient evidence to prove that there was, indeed, a conspiracy to commit a crime.
Karanja was charged that on January 20, 2015 at NYS Headquarters in Nairobi county he engaged in a fraudulent act in a procurement namely inserting the name of Dama Services Ltd in the tender opening register for the procurement of training materials in the Automotive Engineering faculty tender No.NYS/RT/29/2014-2015 which the said Dama services had not been approved for the said tender.
“Having found that Daima Services limited was not pre-qualified for this tender, “have come to the conclusion that the accused person in inserting the name of Daima services limited to the tender opening register was acting fraudulently. His defence that he acted in good faith is not tenable in the circumstances,” ruled the magistrate.
“Having considered the evidence in totality lam satisfied that the bid for Daima Services limited was not in the tender box during tender opening,” he said.
Karanja in his defence admitted he inserted the name of Daima Services Ltd in the tender opening register.
He also confirmed in his defence that the bid from Daima services only bears his signature plus one other unidentified signature.
The prosecution witnesses who testified and the documents tabled in court it come out clearly that Daima Services Ltd was not among the pre- qualifed companies.
