BY SAM ALFAN.
Director of Criminal Investigations George Kinoti has urged the High court to dismiss a case filed by Jambopay seeking to block his office from seizing its servers over the alleged misappropriation of over Sh 1.1 billion NHIF scam.
In a replying affidavit filed in court by Kinoti through lead investigating officer Chief Inspector Nephat Marubu says that the servers are exhibits in a graft case against Jambopay directors Danson Muchemi and Robert Muna who were charged in December last year alongside former NHIF National boss Geoffrey Mwangi in relation to loss of billions.
Marubu has informed the court that the case against the company before Anti-Corruption court where Jambopay directors are facing charges depends on both physical evidence including the system serves which is subject of the petition they have filed and that the general evidence needs to be presented by witnesses who have knowledge of it existence.
“Its seizure, recovery and there is no dispute that the preservation and safety of exhibits in any trial is an integral part of securing justice and fair play,” says Marubu.
He has further dismissed Jambopay claims saying they had not laid any basis either in fact or in law to show that DCI’s custody of the exhibit in question is itself a breach of any of their intellectual or other alleged rights.
The investigating body also said the company has failed to prove how the DCI custody of exhibit is breach of the said rights.
He told the court petition filed by M/S Webtribe Limited trading as Jambopay is misuse of court process and court should not allow the company to prosecutes it interests inform of the enforcement of its alleged contractual rights under the guise of the constitutional petition.
“This court should insists that the petitioner should plead its case for the enforcement of its alleged private contractual rights and intellectual property rights before commercial rights before a commercial court where all parties involved will have the opportunity and the correct forum to defend such claims and enable the court to arrive at a determination based on the evidence adduced and tested under cross he animation,” said Marubu.
The DCI say he will act as mandated by the law and he has no intentions of acting illegally or unconstitutionally as alleged by the Jambopay.
Marubu said that from the time of seizure to moment the exhibit is required to be presented in court there is an obligation to all parties to the case to prevent an abuse of the process and primary method of such prevention of abuse is to avoid an interference with exhibits in manner which many occasion prejudice or mistrial.
He said that the legal onus is on prosecution to prove that the exhibit before court is the same exhibit that was referred to by the witness as it is their duty to establish the maintenance of integrity of the chain of custody.
Marubu furhe says that failure of the successful execution of this duty described may render the exhibit inadmissible as evidence.
“It is also inconceivable and unprecedented for a suspect who in this case is the petitioner to be allowed to retain custody or exercise control over an exhibit, ” said Marubu.
He said the said property belongs to NHIF which they have bought and paid for it twice and the first time was the year 2014 and second time last year.
“The system and the intellectual property rights belong to NHIF and not Jambopay who has no basis in contract to claim ownership of the said intellectual rights as they cannot point to any clause in the said contract giving them the right to sell system to NHIF but at the same retain intellectual property rights,” added Marubu.
In the case Jambopay seeking the court to bar DCI George Kinoti from seizing, carrying and interfering with the servers containing the information and technology (IT) System for the provision of integrated revenue collection services and integrated technical and software services.
The company further argue that during the proceedings before the High Court Anti-Corruption court in a miscellaneous application Director of Public Prosecution and Director of Criminal Investigation threatened to illegally and unconstitutionally take over the information and Technology (IT) System for the provision of integrated revenue collection services and integrated technical and software services being their intellectual property .
The company said DPP and DCI threat to seize, carry away and interfere with the servers containing the IT system of for the provision of integrated revenue collection services, if acted upon will constitute violation and infringement of the M/S Web Tribe Limited trading as Jambopay intellectual property rights.
“If acted upon, will be prejudice to the applicant’s contractual obligations to provide services to the National Insurance Fund (NHIF) under the ongoing contract for the system purchase provision of the integrated Revenue Management system (RFP/SSSM NO. NHIF/001/2017-2018),” say the company.
They further claim DCI move will make it impossible for the Jambopay to comply with the Chief Magistrate’s court orders in case No. 48 of 2018, directing the company to continue providing services to NHIFunder the on-ongoing contract for system purchase for provision of the Integrated revenue management system.
Jambopay says unless orders are issued restraining DCI through any of its agents or investigators from seizing, carrying away or interfering with the servers containing information and technology (IT) system, the company will suffer massive and unprecedented breach of intellectual property rights, privacy and the rights to provide commercial and corporate services for value, for which liquidated damages may not be adequate remedy.
“The petitioner have challenged the DCI and DPP actions and it is just proper that conservatory orders be issued to halts the real and imminent threat of violation and infringement of the Jambopay rights and freedom pending hearing and determination of this petition,” says the company.
According to the court documents, DCI is investigating the allegations of misappropriation of funds, irregular tenders award and information communication (ICT) system manipulation at National Hospital Insurance Fund (NHIF).
On December 10 last year, M/S Web Tribe Limited trading as Jambopay directors were charged with the fraudulent acquisition of public property.
It is alleged that between August 15, 2014, and October 31, 2018, Muchemi and Muna being directors of WebTribe Ltd, they jointly acquired Sh1.1 billion from the NHIF.
