Court of Appeal judge Agnes Murgor has debarred herself from hearing a suit filed by former Central Bank of Kenya (CBK) governor, Prof Njuguna Ndung’u, to stop his prosecution over a botched Sh1.2 billion security tender.
Justice Murgor Wednesday held that she had in the past represented the banking industry regulator when she was still a practicing lawyer, hence presiding over the suit would present a conflict of interest.
Prof Ndung’u in his appeal claims that High Court judge George Odunga allowed the Director of Public Prosecutions (DPP) Keriako Tobiko to prefer non-existent criminal charges against him.
“One of us, Justice Murgor, had previously acted for the CBK which is a party in this appeal and she has recused herself. For that reason the suit will not proceed today. Parties are to seek a new hearing date,” Justice Daniel Musinga, who is part of the three judge bench hearing the matter, said.
The Ethics and Anti-Corruption Commission (EACC) and the DPP’s office in 2014 sought to prosecute Prof Ndung’u with abuse of office and other corruption-related offences for allegedly influencing the award of a Sh1.2 billion tender to UK-based firm Horsebridge Network Systems.
But Prof Ndung’u holds that he was neither part of the tender committee that initially denied Horsebridge the lucrative contract, nor in the Public Procurement Administrative and Review Board (PPARB) that awarded the company the deal.
The former CBK governor adds that allowing his prosecution will be tantamount to outlawing a legal procurement process that he was not part of.
Mr Tobiko however says Prof Ndung’u ignored advice from CBK’s legal team to challenge the PPARB’s decision in court as part of a scheme to ensure Horsebridge was awarded the security systems installation tender.
The Sh1.2 billion deal was to see Horsebridge install and maintain a new security surveillance system for the banking sector regulator.
Justice Odunga when dismissing Prof Ndung’u’s petition held that the trial court is best placed to handle the matter.
Another judge, Weldon Korir, had in 2014 ordered the CBK to award Horsebridge the deal after the EACC failed to finalise investigations into the tender within timelines he had prescribed.
However, the EACC challenged the decision in the Court of Appeal.