Jersey authorities have opened proceedings to seize money that former Kenya Power managing director Samuel Gichuru and former Energy minister Chris Okemo are accused of stealing and hiding in the UK island more than 10 years ago.
Jersey’s Attorney- General Robert MacRae on Monday commenced a forfeiture case against Windward Trading Ltd, the entity Mr Gichuru used to receive kickbacks for the award of lucrative tenders to suppliers during his two-decade tenure at the helm of Kenya Power.
“The Attorney- General of Jersey has commenced a criminal prosecution of Windward Trading Limited. The next court hearing is February 24, 2016,” said Alec Le Sueur, the practice manager and director of administration at the Jersey law officers’ department.
Mr Okemo has also been named as a beneficiary of bribes paid to Mr Gichuru, according to court papers, and is also wanted in Jersey to face money laundering and fraud charges.
The Royal Court of Jersey is hearing the case and is expected to confiscate the cash held through Mr Gichuru’s firm - estimated at more than Sh1 billion – that is now seen as proceeds of crime.
Finnish energy firm Wärtsilä, Knight Piésold, British engineering company Mott Macdonald and Capitan (Europe) are some of the global firms that paid kickbacks to Mr Gichuru’s company, which had accounts with Jersey’s HSBC Bank Plc and Royal Bank of Scotland International.
Mr Le Sueur declined to reveal how much money remains in Mr Gichuru’s offshore account, insisting it would prejudice the ongoing confiscation proceedings.
“I am afraid we cannot disclose this type of information on the case while it is ongoing,” he said.
It was Mr Gichuru’s messy divorce case that lifted the lid on his hitherto secretive offshore accounts, prompting Jersey authorities to probe the matter.
The Proceeds of Crime (Jersey) Law (1999) provides for confiscation and forfeiture of assets gained from criminal activities such as money laundering, drug trafficking and inducements such as bribery.
The renewed efforts by Jersey authorities to bring Mr Gichuru and Mr Okemo to justice by attaching their assets comes at a time when the duo has staged an epic court battle in Kenya against attempts to extradite them to the Channel island to face criminal charges.
The Court of Appeal last month temporarily stopped the extradition of Mr Gichuru and Mr Okemo after the two contested a ruling by the High Court that allowed their transfer to Jersey Island to face criminal charges.
A court in Jersey issued a warrant for the arrest for Mr Gichuru and Mr Okemo on April 20, 2011 – but the duo has challenged the move through multiple legal suits in Kenyan courts.
Mr Gichuru and Mr Okemo face 53 counts linked to “commissions” paid by companies to win Kenya Power tenders and held in a Jersey account in foreign currencies: £4.45 million; $3.2 million and kr790,000; (totaling Sh1.01 billion at current exchange rates) according to Jersey court papers.
Jersey, a British Crown dependency, is the biggest of the Channel Islands and has a population of about 100,800 sitting on a land mass measuring eight kilometres long and 14.5 km wide.
The Jersey confiscation proceedings make it the third time this year that Kenyan authorities are being shamed for inaction in international corruption cases.
London’s Southwark Crown Court on January 8, 2016 seized the assets of Smith & Ouzman, a British printer, and ordered the company to pay £2.39 million (Sh351 million) in fines and penalties for paying out bribes codenamed ‘chicken’ to Kenyan electoral and examination officials.
Four days later, Moi-era looter and pseudo-businessman Ketan Somaia -who is already serving an eight-year sentence at the maximum security Belmarsh Prison for fraud - was fined a total of Sh5.6 billion by a British court or serve a 16-year jail term for a separate fraud case.
Mr Somaia is the billionaire who presided over the collapse of Delphis Bank and is best known for his involvement in the Goldenberg scandal that wrecked Kenya’s economy.
Mr Gichuru and Mr Okemo are staring at jail terms of 14 years each if successfully extradited to Jersey and found guilty of the charges preferred against them.
The duo also faces a punitive financial penalty and asset seizure that may trace some of their holdings in Kenya, going by the precedent set by British courts in similar confiscation proceedings.
For example, the total fines levied on Smith & Ouzman and its directors was nearly seven times the £349,057.39 “chicken” bribes paid to top officials of the defunct Interim Independent Electoral Commission (IIEC) – the predecessor to IEBC - and the Kenya National Examinations Council (Knec).
Mr Gichuru was known to have significant stakes in Kenya Power, KenGen, Kenya Bus Services, Kenya Seed Company, Sasini, Yana Trading, Iberafrica Power as well as the prestigious Lord Errol, a restaurant in Nairobi’s posh Runda suburb.
He also owns 71 prime properties, comprising land and buildings in Nairobi, Mombasa, Nakuru, Kitale, Kiambu, Naivasha, Nyahururu, Kitengela and Mavoko municipality, according to divorce papers.
Mr Gichuru in August 1986 set up Windward Trading in Jersey as the entity that would receive bribes disguised as ‘commissions’ or ‘consultancy fees’ from firms that won Kenya Power tenders.
Walbrook Trustees was appointed the administrator of the offshore company, a legal arrangement that shielded Mr Gichuru from being seen as the face behind the entity.
Suppliers inflated tender prices to factor in Mr Gichuru’s kickbacks, and would then wire the cash to the offshore account once they received payments from Kenya Power.
Wärtsilä paid Windward £3 million and £500,000 between January 1998 and October 2001, according to court papers.
“This evidence is supported by the records showing that the greater part of the payments to Gichuru and Windward came after Knight Piésold was paid millions of pounds by Kenya Power with respect to a hydro-electric power project known as Ewaso Ngiro and that commissions were included in consultancy fees.”
It is Gichuru who signed the award document for the £43 million Ewaso Nyiro contract and much of it was paid upfront to Knight Piesold to enable Windward get its consultancy fee.
Court papers say that Okemo’s receipts from Windward were between August 2000 and August 2001 during a period that Gichuru’s company was receiving significant payments from Wartsila.