Director of Public Prosecutions (DPP) Noordin Haji has dropped some charges against former Treasury Cabinet Secretary Henry Rotich over the Sh63 billion Arror and Kimwarer dams’ scandal.
In an application filed ahead of the trial that was set to begin on Monday , the DPP moved some of the charges related to the award of tenders for the construction of the two dams by Italian firms to former Kerio Valley Development Authority (KVDA) managing director David Kimosop and others.
The new charge sheet claims that Mr Kimosop and senior officials of KVDA wilfully failed to comply with competitive bidding for the projects’ tender as required by Section 29 (1) of the Public-Private Partnership Act.
Mr Rotich had initially been charged with engaging the collapsed Italian construction company CMC Di Ravenna.
The Italian firm went bankrupt months after receiving Sh7.2 billion in advance payment for the non-existent project.
The latest move by the DPP came in the wake of a petition filed in the High Court by Mr Rotich arguing that the charges against him were premised on the wrong assumption that he was the one who initiated the projects.
The former Cabinet Secretary has insisted that he was involved at the tail end of the projects.
The DPP also intends to reduce the number of accused persons to nine, after dropping charges against members of the KVDA tender committee who were involved in the procurement for the construction of the multi-billion shilling projects.
Senior assistant DPP, Alexander Muteti, told the trial magistrate Lawrence Mugambi that there are plans to merge the two case files and reduce the number of charges from 40 to 30.
Mr Muteti said the persons whose names do not appear on the consolidated charge sheet, should be set free henceforth and their respective cases deemed duly terminated under Section 87(a) of the Criminal Procedure Code.
If the application is allowed, the number of witnesses will also reduce from 104 to 52 -- a move the DPP argues would help expedite the conclusion of the case.
“That it is in the interest of justice that the two matters be consolidated to avert unnecessary delay in the conclusion of the matter considering the amount of public funds that are subject of the trial,” says the prosecution.
In the application, the DPP has maintained that Mr Rotich illegally entered into a commercial loan agreement for 578 million euros, thereby exceeding the national public debt limit set at 50 percent of the gross domestic product in net present value terms.
The new charges state that Mr Rotich committed Kenya to transact business with a firm not registered under the Insurance Act and without approval from the Commissioner of Insurance.
Mr Rotich is alleged to have committed the offence on April 18, 2017 by engaging an entity known as SACE SpA as the insurer of loans obtained for the two dams in Elgeyo Marakwet County.
Mr Haji has accused Mr Rotich of hiding behind the government- to-government procurement to single-source policy valued at Sh11 billion -- an amount that was allegedly inflated by more than 400 percent -- from SACE (a privately owned Italian export credit agency offering insurance).
The DPP made the changes saying that if the cases were heard separately, two conflicting decisions might be arrived at, which might embarrass the court and erode public confidence in the justice system.
Mr Rotich will now plead to fresh charges together with Mr Kimosop, Kennedy Nyakundi Nyachiro (chief economist and head of Europe 11 division), Jackson Njau (director resource mobilisation), William Kipkemboi Maina, Paul Kipkoech Serem, Francis Chepkonga Kipkech, Titus Muriithi, and former National Environment Management Authority boss Geoffrey Mwangi Wahungu.
The charges state that they conspired to defraud the government $501,829,769 by unlawfully initiating and entering into construction, financing, and insurance agreements for the development of Arror and Kimwarer multi-purpose dams.
Mr Rotich is accused of borrowing funds from private foreign banks without any budgetary approval by Parliament and any allocation for the loans being approved by Parliament in respect to Arror multi-purpose dam.