BY SAM ALFAN.
Director of Public Prosecution has appealed decision by the trial court to acquit six accused persons with several counts of corruption in relation to a tender for supply of books worth close to Sh1 million.
Prosecution wants the high court Anti-Corruption court to set aside orders acquitting the Nairobi Assembly clerk Jacob Ngwele , principal accountant Philomena Kavinya ,(senior procurement officer James Kariuki ,senior finance and planning officer Fredrick Mwangi and proprietor Primara Ventures Raphael Maluki.
“Having so found , all accused persons are hereby acquitted on all the chargesunder section 210 of the Criminal Procedure Code (CPC) for lack of evidence,” ruled Mutuku.
Prosecution claim trial magistrate Martha Mutuku erred in law and fact to acquit the accused under section 210 of criminal procedure code while the prosecution had established their case to warrant the accused being put on defense.
They further claim the tria court erred by holding I that the use of request quotations for the procurement was regular and justifiable.
They dispute the trial magistrate of finding that there was a legitimate contract and the goods (books) question were delivered.
Prosecution faulted trial court finding that the payment to Primara Ventures was irregular.
“The learned magistrate erred in law and fact in finding that the inspection and Acceptance committee acted in compliance with the law contrary to the weight of evidence,” said prosecution appeal.
Trial court Senior Principal Magistrate Martha Mutuku acquitted the accused persons saying charges did not amount to criminal culpability.
” I find it does not amount to criminal culpability and hence all accused persons are hereby acquitted under section 210 of all charges charged,” ruled Mutuku.
Ms Mutuku further ruled that all the key witnesses gave evidence that exonerated all the accused persons from criminal culpability.
“They stated that there was no breach of procurement laws and the books had been supplied to the county store hence paid for regularly,” ruled magistrate.
She added that the investigating officer appeared not to have a satisfactory understanding and appreciation of procurement laws.
The magistrate said that the prosecution case was premised on a draft audit report . All the queries raised in the report were exhaustively and satisfactorily responded to, and supported by the final audit report.
She further said that prosecution case was hitch on communication breakdown between the user department and procurement department and it was noted the books were delivered to the store instead of resource center.
“I find that the key witness or person in charge of these investigation seem to have been influenced by malice and the whistleblower who is said to be Hon Kabiru who said the books were not available was not even called to give evidence,” said magistrate.
The accused were jointly charged with conspiracy to defraud Nairobi County Assembly.
It was alleged that between March 6 and July 5, 2017, with intent to defraud the Nairobi assembly, they flouted procedures in the procurement of books for their resource centre by irregularly paying Sh997,926 to Primara Ventures.
Muvengei was separately charged with two other counts of abuse of office and willful failure to comply with procedures and guidelines relating to management of public funds.
Awour, Kavinya, Mwangi and Kariuki were each charged with a count of abuse of office. Karuiki was charged with undue influence where it was alleged that on March 2017, he instructed Daisy Mueni of procurement to irregularly prepare quotations for four companies including Primara which was contrary to guidelines relating to public procurement.
The court also heard that on July 5, 2017, Mwinzi, being the proprietor of Primara Ventures, unlawfully acquired Sh997,926 as payment for supply of books for Nairobi county assembly resource centre.
They were out on bond 600,000 or an alternative bail of Sh300,000 to secure their freedom.