Billionaire Dr. Evans Kidero wants a three-judge bench constituted to determine a recently filed petition.
This application was filed on October 9, 2019 just a month after the Ethics and Anti-Corruption Commission(EACC) sought to recover Ksh. 68 million from Dr. Kidero and his co-accused.
In the letter dated September 12, 2019 the EACC wrote to Dr. Kidero, his former chief of staff George Wainaina, Nyakach MP Aduma Owuor and others. Intricacies of the letter revealed that the EACC had given Dr. Kidero and others a two week grace period to refund the embezzled money failure upon would arise liability.
“As a consequence of your negligent acts of commission and omission the government of Kenya incurred a loss of Ksh. 68 million. In light of the foregoing you are jointly and severally liable to compensate the government Ksh. 68 million together with interest.”Read part of the letter. “Take notice that if the said sums is not remitted to the Commission within 14 days from the date of this letter, we shall institute recovery proceedings against you at your own risk as to costs and other consequences without further reference to you.”
Consequently, EACC has since charged Dr. Kidero and 15 others on grounds of fraudulently making of payments amounting to Ksh. 68 million.
In the petition filed under a certificate of urgency through city lawyer, Nelson Havi, Dr. Kidero wants the High Court to quash his prosecution on grounds that the charges instituted are in contravention of the ACECA (anti-corruption and economic crimes act).
Dr. Kidero claims that he is the target of malicious prosecution and public ridicule for events that took place in 2011 whereas he assumed the governor’s office in 2013.
“He cannot be accused of conspiring with the law firm to defraud the county government when the contract had been signed before he assumed office. He did not play any role whatsoever to suggest he is the one who issued instructions to the law firm to take up the case,” said his lawyer, Nelson Havi.
Through his lawyer, the applicant argues that there is no factual basis for the criminal charge since contrary to the allegation by EACC that the money in question had been embezzled by several people including Dr. Kidero; it had been legally paid to Wachira Mburu and Company Advocates for legal services rendered to the defunct Nairobi City Council in 2011.
The law firm had represented the defunct Nairobi City council in HCC No. 875 of 2010 after the plaintiff, Kyavee Holdings Ltd sued the council for deciding to cancel a lease they had issued them.
The applicant stated that the law mandated all county governments to settle all pending bills carried over from the defunct councils and so when he assumed in 2013 his administration paid the legal fees to the aforementioned law firm.
“The prosecution is manipulating the criminal justice system to achieve extraneous purposes. You cannot prosecute the former governor for doing what the law mandated him to do by settling debts accrued by the former city council.”
The lawyer also avers that Mr. Kidero has not being afforded a fair administrative process according to Article 47 of the Constitution.
Dr. Kidero is accused of receiving Ksh 14.4 million from a firm associated with George Wainaina who in turn had received the money from lawyer Steve Kariuki.
Investigations carried out by the EACC revealed that Steve Kariuki is a lawyer from the firm M/s Wachira Mburu, Mwangi and Company Advocates. The firm had been instructed by Mr. Aduma to act on behalf of the Nairobi County Council in HCC No. 875 of 2010 without following the due procedure. The investigations had also revealed that no services had been rendered and that the entire amount of Ksh. 68 million had been embezzled.
Hon Lady Justice Mumbi Ngugi is expected to give directions on Thursday, October 24, 2019 as to whether the file will be placed before the CJ Maraga for the appointment of a three judge bench.
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