Suspects in Arror dams scam want to be State witnesses

Five people charged over the Sh54.7 billion Arror and Kimwarer dams scandal have volunteered some evidence to the prosecution that it might use to nail high-profile accused persons in the case in exchange for their freedom or lesser punishment.

The special prosecutors in the case, Taib Ali Taib and Alexander Muteti, told Nairobi senior principal magistrate Felix Kombo that Director of Public Prosecutions (DPP) Noordin Haji was considering a plea bargain offer by the five accused persons to become State witnesses.

If the DPP agrees to the quintet’s requests, their evidence would be used to nail eight others implicated in the scandal, including former Kerio Valley Development Authority (KVDA) managing director David Kimosop and members of the tender committee.

Their evidence might also be used in a separate case where former Treasury Cabinet secretary Henry Rotich is facing similar charges related to the procurement contracts for the construction of the two dams in Elgeyo Marakwet County.

Early this year, former Treasury Principal Secretary Kamau Thugge and his Tourism and Wildlife colleague Susan Koech turned into State witnesses in the case against Mr Rotich after the DPP dropped the charges against them.

Mr Kimosop has been charged together with William Maina, Francis Serem, Elizabeth Kebenei, and others with conspiracy to defraud, wilful failure to comply with laws relating to public procurement, neglect to perform official duties, and abuse of office.

Others facing charges are former National Environment Management Authority (Nema) boss Geoffrey Wahungu, director of compliance at Nema David Walunya, and Boniface Mamboleo, a section head of impact assessment at the Nema.

In the case against Mr Kimosop and other KVDA officials, the prosecution alleges that they unlawfully procured the services of Italian firm CMC Di Ravenna-Itinera JV for the development of Arror and Kimwarer multi-purpose dams’ between December 17, 3014 and January 31, 2019.

Eighteen Italians implicated in the dams scandal are yet to be charged.

HEARING DATES

The prosecution says the two projects were a scheme designed to defraud the Kenyan government of $501,829,769 (Sh54.7 billion).

Thursday, Mr Kimosop through his lawyer Katwa Kigen, opposed further postponement of the case.

"We urge the court to give us hearing dates within which time prosecution will indicate which accused persons will be affected by the ongoing review," he said.

Senior principal magistrate Kombo gave the DPP until September 29 to review the requests.

Mr Rotich has separately been accused of entering into a construction deal for the two dams yet the project had not been approved and improperly securing a commercial loan under the guise that it was a government-to-government agreement, making the government of Kenya liable as a financier and borrower.

He is also accused of single-sourcing an insurance policy that caused the government to lose Euros 42,088,198 (Sh5.56 billion, at the current exchange rates).

Mr Rotich is further accused of using his office as a Cabinet Secretary to confer contractual rights and benefits to CMC I Ravenna-Itinera joint venture and unlawfully executing a facilities agreement.

But the former CS has challenged his prosecution in the High Court saying the DPP left out players in the chain of events and that he has probable cause to believe that Mr Haji was biased or may have reasonably be suspected of bias.

PUBLIC DEBT

He also says the public debt management office at the Treasury reviewed, negotiated, and sought legal clearance from the Attorney-General before recommending to him to sign the loan agreements.

In a petition pending before the High Court, the DPP wants a bench of three judges to determine whether a Cabinet Secretary should be held accountable individually for the exercise of his powers and in the performance of his functions.

Mr Haji also wants the court to determine whether Cabinet Secretaries are immune to criminal prosecution for acts and omissions in the course of their duty.