Hearing of an application seeking to prosecute Interior Cabinet Secretary Dr Fred Matiangi over the payment of Sh1.5 billion to a businessman for acquiring two parcels of land will be heard on Tuesday.

Milimani Anti-corruption chief Magistrate Douglas Ogoti directed the application by former state director of digital communication Dennis Itumbi to be heard on November 24. 

“The applicant’s ex-parte application dated November 18 is fixed for hearing on November 24, 2020 and Covid-19 rules and regulations  by MoH to be followed to the latter,” ordered Ogoti. 

Itumbi filed the application under certificate of urgency seeking to privately prosecute Dr Matiangi over payment, which has been termed by court as irregular.

If successful in his bid, Itumbi charge Matiangi with abuse of office, willful failure to comply with the law and applicable procedure and guidelines relating to public funds and conspiracy to defraud government of Sh1.5 billion. 

According to the charge sheet filed in court, he alleged that on or about March 17, 2017 at the ministry of education Nairobi being the Education, Science and Technology CS, together with others not before court, he used his office to improperly confer a benefit of Sh1.5 billion to Afrison Export Import limited, Huelands limited and Whispering Palms Estate.

The payment was for compensation for land allegedly acquired by two government learning institutions.

He said the CS put up a formal request pursuant to section 107(1) of the Land Act, 2012 to the National Land Commission to commence the process leading to the compulsory acquisition of land in which Ruaraka High school and Drive Inn primary schools stand, in the pretext it was private land. 

In the court documents, Itumbi argue that the government through Ministry of Education under Dr Matiangi initiated the process that saw taxpayers lose Sh1.5 billion.

He claims that for more than two years Director of Public Prosecution Noordin Haji has not taken any progressive steps to prosecute Matiangi, who played a major role in the loss of public funds.

He further state that EACC has no reasonable cause why it has not concluded investigations into the irregular award to the said controversial parcel of land

“The office of Director of Public Prosecution on the other hand did not bother to respond to the issues raised by the applicant. Instead he decided to take a more than usual and reasonable reticence in addressing the issue raised by the applicant’s letter,” he claims. 

Itumbi argued that unless Matiangi who was the mastermind in setting up all the necessary motions that resulted the loss of funds, there is likelihood that great public injustice will result, because public money that was entrusted to the state officers like him have already gone to individual pockets illegally. 

Itumbi says he fears that Matiangi who is the chairman of the National Development Implementation and Communication, a committee which places him in charge of delivery of all government programmes and projects as per the executive order and is mandated to approve proposals budgery provisions in annual ministerial budgets and medium – Term expenditures, he will influence the approval of payment of the remaining balance of Sh. 3,269,040,600 billion. 

He adds that investigations by the committee on Quality Assurance and Standards Investigative headed by John Oloituaaa in it report found that the said land in question had already been surrendered as a public utility and therefore Afrison Export Import limited and Huelands limited had no basis for compensation of Sh. 1.5 billion for the said land.

“In blatant disregard of the report by the committee that the schools occupied a portion of land been surrendered. Matiangi put forth a formal request to compulsory acquire the said land pursuant to section 107 (1) of the land Act in a letter dated March 17,2017”, addds Itumbi. 

The ministry and the then CS Matiangi ignored the committee report and he wrote a letter to the National Land Commission dated February 7,2017 stating that schools are already developed on part of the said land which per the said letter is private land and that it was necessary to acquire the portion for the public interest.

According to the Itumbi documents, Sh. 1.5 billion being part payment of the compensation for the purported acquisition was paid to Whispering Palms Estate limited on January 30,2018 and the authority to pay Whispering Palms Estate video a letter dated January 26,2018 where businessman Justin Mburu and Mark Mburu the co-directors of Afrison Export import and Huelands limited instructed NLC to pay for the compensation amount to this company iwho purported to be registered owners of the property. 

“From the foregoing. It is evident that the person who is solely to blame for the tax payers loss of money is Fred Matiangi because he ignored the recommendations in the Quality Assurance and standard Investigative report that advised that the land where government two institutions were situated was on public land and that the two companies Afrison export import and Huelands limited had No basis to be compensated “, adds Itumbi. 

Itumbi further adds that Matiangi’s letter dated March 17,2017 was one that set all necessary motion for the tax payers loss Sh. 1.5 billion money that would have been used to realize the social economic rights most of the Kenyans lack were it not for this major decision taken by him no money would have been released by treasury neither would the two companies receive Sh. 1.5 billion paid to them illegally