The trial of former officials of Geothermal Development Company (GDC) over abuse of office among other offences will proceed after the Supreme Court dismissed an appeal filed by the former managers.
A bench of five judges of the top court ruled that the former officials failed to show how the Director of Public Prosecutions Noordin Haji and Ethics and Anti-Corruption Commission (EACC), were malicious in bringing the charges against them.
The officials who were charged in 2015 include former managing director Silas Masinde Simiyu, GDC company secretary Praxidis Namoni Saisi and seven members of the company’s tender committee.
The nine were accused of illegally awarding a Sh42.7 million rig move services tender to Bonfide Clearing and Forwarding Ltd.
They challenged their prosecution, arguing that the charges were based on a non-existent provision. The trial had been put on hold to await the outcome of the appeal at the Supreme Court.
“It is our considered opinion that it would be pragmatic that the Appellants let the trial commence and conclude, during which trial they may raise all the issues they have as against the law under which they are charged. If successful, it is only then that they will pursue their rights on appeal,” Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko said.
The tender committee members who were facing the charges are Nicholas Karume Weke, Abraham Kipchirchir Saat, Peter Ayodo Omenda, Godwin Mwagae Mwanongo, Caleb Indiatsi Mbayi, Bruno Mugambi Linyuru and Michael Maingi Mbevi.
Ms Saisi had faulted the decision to charge her claiming that the DPP failed to holistically interpret and understand the Public Procurement and Disposal Act.
The EACC had defended the charges stating that the officials failed to ensure that GDC did not pay in excess of prevailing market prices for rig move services.
The case was stopped by then High Court judge George Odunga but the EACC and DPP appealed against the decision.
The Court of Appeal overturned the decision of the High Court stating a judge should not consider the merits of the decision by a public body but rather undertake a consideration of how the decision was made. The trial resumed but the officials moved to the Supreme Court and the case was halted.
“We therefore come to the conclusion that the Court of Appeal did not err in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution,” the judges said.
They urged that although the Public Procurement Oversight Authority (PPOA) publishes a Market Price Index, the procurement by GDC was not for a service that is published in the PPOA Market Price Index.
Consequently, they argued that it could not be said that the Tender Committee had failed to comply with Regulation 10(2)(e) to ensure that the procuring entity did not pay in excess of prevailing market prices.
EACC maintained that there was no justification for the large sum awarded in the tender.
GDC is fully owned by the government and carries the business of geothermal exploration, assessment, extraction, utilization and development of natural resources including geothermal heat, steam water and other resources.
