Judge defiant after clearing Pattni of Goldenberg scamSunday April 21 2013
The High Court Judge who cleared Goldenberg architect Kamlesh Pattni of all the criminal charges related to the multi-billion shilling scam has declared his readiness to face public backlash elicited by his controversial judgment.
Justice Joseph Mbalu Mutava made the judgment dated March 20 absolving Pattni and his associated firms from the Goldenberg scandal.
Mr Pattni was charged with conspiracy to defraud the government Sh5.8 billion, which was just one of multiple cases related to the scam that is believed to have cost Kenyan tax payers more than Sh100 billion.
In his ruling, Justice Mutava, however, rejected Mr Pattni’s contention that the media be barred from reporting the case.
“It will be foolhardy not to observe that the verdict of this court in the present application is bound to elicit din, clamour and hostility in view of the predispositions by the media and public opinion with regard to the notoriety of the applicant (Pattni),” said Mr Justice Mutava in his ruling, declaring that the work of a judge is not for the faint-hearted.
“I am, therefore, comfortable and well prepared for any reaction,” he added.
The judge barred the State from continuing with the criminal prosecution against Pattni on the grounds that the businessman’s constitutional rights had been violated since the case had dragged on for too long.
The Law Society of Kenya (LSK) on Saturday questioned the circumstances under which Justice Mutava was allowed to continue hearing the case and deliver the judgement, yet he is being investigated by the Judicial Service Commission over his handling of criminal cases facing Mr Pattni.
“A committee was formed and the complainants even made submissions before it. Months down the line, we are yet to get the outcome of the investigation,” the LSK secretary Apollo Mboya was quoted saying in an interview with our sister newspaper, the Sunday Nation.
The file containing Justice Mutava’s ruling is also said to have mysteriously gone missing from the High Court registry for 18 days, resurfacing only last week after the 14-day window for lodging appeals had closed.
The judge also observed that the report by Commission of Inquiry chaired by former Court of Appeal judge Samuel Bosire on the scandal on which the existing criminal case was anchored is flawed and that most witnesses had died or their memories have faded.
Pattni moved to the High Court in August last year seeking to quash the criminal proceedings at the magistrate’s court and stop the State from further criminal prosecution on the scandal estimated to have cost Kenya billions of shillings.
On Pattni’s prayer that the media be barred from reporting on the case, the judge said that the court could only intervene to set parameters of reporting to protect someone’s rights.
Last November, Justice Mutava’s conduct was put to question in a petition filed against him by Havi and Company Advocates on behalf of the International Centre for Policy and Conflict (ICPC). It sought to have the judge removed from office over his handling of the Pattni cases.
ICPC had argued that the whole matter had not been handled through the correct procedure and some court orders made were outside of the law.
The petitioner had faulted the judge’s handling of the case and accused him of being part of “an orchestrated cover-up to aid and abet Pattni’s criminal conduct”.
Justice Mutava was later transferred to Kericho from where he wrote the controversial judgment on Mr Pattni’ application for the case to be scrapped.
(Read: Mutunga moves judge in the eye of Pattni storm)
In setting Pattni free, the judge heavily borrowed from cases that involved the late internal security minister George Saitoti and former Central Bank governor Eric Kotut, where the court recommended that the two should not be prosecuted based on the Bosire Report, which it said was heavily flawed.
Justice Mutava said the application by Pattni was related to the Saitoti and Kotut cases and the transactions were similar. He also let off the hook Kipng’eno arap Bii, a former general manager at KCB and a co-accused of Mr Pattni. The third accused, Wilfred Koinange, is deceased.
(Read: Goldenberg ‘fall guy’ who loved books, music and money dies)
Unless director of public prosecutions Keriako Tobiko appeals the decision, the judgment brings to rest a 20-year-old scandal that destabilised Kenya’s economy and triggered massive depreciation of the shilling.
Mr Tobiko has already applied to court asking to be supplied with the certified copies of the proceedings to appeal the decision. The scandal dates back to 1990 when Mr Pattni incorporated Goldenberg International Limited, which claimed to have been engaged in gold and jewellery exports.
The Treasury paid the company Sh5.8 billion in compensation for the alleged exports, which was faulted as illegal, irregular and in some instances non-existent.
The businessman-turned-preacher was charged in court with the offence in the 1990s, but when former President Mwai Kibaki took office in 2003, all the pending nine charges were terminated and the Bosire commission formed to investigate the scandal.
The commission in its 2006 report recommended further investigations and prosecution of the suspects including Mr Pattni.
Meanwhile, Mr Pattni struck a plea bargain deal with the Central Bank, to which he refunded Sh2.4 billion and surrendered the Grand Regency (now Laico) Hotel.
(Read: Pattni bank targets CBK with Sh5bn Goldenberg-linked suit)
Following the recommendation of the Bosire Report, Pattni was charged at the magistrate court in 2006 with four criminal charges. In 2011, he started talks with the DPP to have the criminal proceedings dropped which collapsed early last year.
The charges against Pattni were brought afresh in April last year, where he was charged with eleven charges that included seven new ones. Following the development, he moved to High Court seeking to stop further prosecution saying that the state had infringed on his rights.
The Judge said that in the new charge sheet, CBK is listed as complainant and yet it had reached a settlement with Mr Pattni surrendered Grand Regency. Further, the DPP had submitted to the High Court that CBK was just a witness and not a complainant, which he found contradictory.
He said the laying of fresh charges against Mr Pattni and others, more than fourteen years after the events occurred, constituted an inordinate delay and was in no manner a reasonable time.
“This court has found that the applicant and the interested party’s fundamental rights and freedoms guaranteed by the constitution have been violated by the state in several respects and on this ground, has issued prohibitory orders against the state, effectively bringing to an end any current or future criminal proceedings against the Applicant and the interested party (Mr Bii) arising from or in any way connected to the Goldenberg affair or Bosire report,” ruled the Judge.
Although the Judgment may have left room for the DPP to carry out fresh investigations, this may be a tall order considering that as noted by the Judge most witnesses have either died or their memories faded.
Among the dead co-accused are former spy chief James Kanyotu, former Treasury PS Wilfred Koinange and CBK deputy governor Eliphas Riungu.