BY SAM ALFAN.
Former ICT Director Department in the office of Auditor General Edward Ouko has lost an attempt to block his prosecution over irregular procurement of the Audit Vault Software five years ago.
Justice John Onyiego while dismissing the application by Justus Ongera said that he was satisfied that there are high prospects of a conviction against him for giving misleading information or professional advice causing his boss the auditor general Edward Ouko and tender committee to single source which could not have been done if he had correct information.
“Having held that the respondents (EACC and DPP) properly acted within their constitutional and statutory mandate in recommending prosecution of Justus Ongera, it then follows that the prerogative orders of prohibition are not applicable and the application is dismissed and interim prohibition orders issued on 14 February 2017 vacated,” ruled judge Onyiego.
Ongera filed an application in the High court on 14 of February 2017 seeking orders to quash the decision by DPP to institute criminal proceedings against him following investigation by the Ethics and Anti-Corruption Commission into allegations of irregular procurement of the Audit Vault Software by the office of Auditor General Edward Ouko.
He also applied for order to prohibit EACC from arresting, incarcerating , undertaking or instituting any criminal charges against or prosecute him on matters relating to the enquiry into allegations of irregular procurement of the Audit Vault Software by Auditor General office.
Ongera also was seeking orders to suspends decision by DPP to charge him with offence of knowingly deceiving principal contrary to section 41(2) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act.
Ongera and the then IT Audit Manager one Annete Mwangi were sometime in 2013 tasked with the duty of conducting due diligence on prospective suppliers of an Audit Vault Software an analytical tool used for in the management of Auditing process more particularly on the IFMIS.
But DPP through senior deputy director of public prosecution Nicholas Mutuku opposed the his application saying that the decision to charge Ongera was properly , procedurally and legally made hence nothing irregular or irrational.
EACC through Mulki Ummar also challenged Ongera application saying there was no proof that they had abused any process or authority in recommending the prosecution against him with various charges relating to corruption.
Ongera told the court that DPP directed the commission to arrest him on 3 of February 2017, for purpose of instituting criminal proceeding against him without reasonable and probable cause amounting criminal prosecution other than for malice.
“The criminal proceedings that the First respondent (DPP) intends to carry out constitute an abuse of the court process as the DPP has absolved all the persons that gave approval of the procurement that had given rise to this investigation,” claimed Ongera.
He alleged that when the matter was still under consideration of the DPP, the Auditor General Edward Ouko wrote to Oracle System Limited seeking among others a confirmation as to who their partners (with local reference) were , as at that time when office of the Auditor General was purchasing the Audit Vault System.
“On 8 of February 2017 Oracle System Limited wrote to the office of the Auditor General a letter confirming at the time of the sale of the Audit Vault System to the office of the Auditor General the only Oracle partner with reference tin Kenya in 2013 was OSI Slovenia and the implementing partner of the Audit Vault in 2013 was OSU Kenya Limited who were a subsidiary of ISO Slovenia,” said Ongera.
He claimed EACC recommendation and DPP decision in respect to the proposed charges against him would have been different.
He claimed that his finding together with her colleague was duly communicated to the Auditor General and the tender committee who met and approved the purchase of the software through direct sourcing which decision was approved by the executive committee.
Ongera told the court he was not a member of any of the mentioned committee and did not have any power to influence their decision. He added he and his colleague Annette Mwangi only made recommendation that could either be accepted or rejected.
“That the decision to use direct procurement tendering method was communicated to the public oversight authority in accordance with the public procurement and disposal Act 2005,” said Ongera.
The former ICT director contended that an anonymous letter addressed to treasury sometime in 2year 2017 claiming that the office of the Auditor General had irregularly purchased the AVS for 100 million instead of 18 million was malicious. He termed corruption report made by the EACC which recommended him and others to be charged with various offences contrary to the Anti-Corruption and Economic Crimes Act.
Ongera questioned the manner in which EACC handled the investigation and recommendation report by declining to charge the Auditor General Edward Ouko and members of the executive committee ( decision makers) as the people who awarded the contract.
“The recommendation to be prosecuted while absolving the Auditor General , tender committee is discriminatory, irrational, abuse of the court process and borne of exterior consideration and ulterior motives as the said persons were in fact responsible for giving approval for the direct tendering method to be used in this procurement,” added Ongera.
Ongera also claimed the criminal proceedings about to be instituted by DPP if undertaken will be done impartially and against the rule of natural justice..
DPP asserted that the applicant’s memo of 18 of June 2013 stating that OSI Kenya Limited were the only accredited Oracle providers of an Audit Vault Solution to the office of Auditor General was false and misleading as there were several other acredited Oracle providers of Audit Vaults Solution.
He said the company wrote to EACC on 8 of July 2015 confirming that there were accredited partners in Kenya with the capacity to supply and install Audit Vault Software to the public sector.
Oracle Gold,Platinum and Diamond partners had a valid Oracle network membership with full use distribution agreement. Oracle also confirmed by 2013 they had partners among them Hidra Limited, Seven Seas Tech, E.momentum interactives System Limited, Tech net Limited, Verve K.O.G limited, Netronics Communication limited, KPMG, Oslo Kenya among others.
EACC said that after further investigation it emerged that Shilling 36 million was paid to Stephen Ndungu Kinuthia Direction General Corporate Services as Kickback from OSI Kenya Limited and a broker called Stephen Ndungu received 500,000 , Charles Gichobi a sales executive received shilling 10 million directly from OSI as kickback thus necessitating recovery of proceedings in civil suit No. 5 of 18.
They denied acting illegally , irrationally or maliciously.
