An advocate who registered the Kenyan arm of the Italian firm accused of receiving billions of shillings for the construction of Kimwarer and Arror dams is fighting to stop fraud charges against him.
Arguing before Justice Mumbi Ngugi Monday, Mr Richard Malebe said he only registered the company- CMC Di Ravenna Kenya -in his professional capacity and played no role in stealing the funds as alleged.
He said the Director of Public Prosecutions (DPP) was abusing the court process by preferring charges against him.
“The reputation of the petitioner, who is an advocate and a certified public secretary stands to suffer if the actions of the first respondent is not restrained,” his advocate Elisha Ongoya said.
He denied being a director, shareholder or official of the company but said he executed the forms as a company secretary as well as the person authorised in the Companies Act, to accept service of process and any notices required to be served on the company in Kenya.
But the DPP through Taib Ali Taib said Mr Malebe’s role was not only to register the company, but he was also a director, the company secretary and its representative.
Former Cabinet Secretary Henry Rotich, PSs Kamau Thugge, Dr Susan Koech and former Kerio Valley Development Authority (KVDA) managing director David Kimosop among others, have denied fraud charges over the construction of the two non-existent dams. The companies, CMC Di Ravenna Itinera JV and CMC Di Ravenna Itinera JV Kenya branch, together with Mr Paolo Porcelli are accused of fraudulently receiving USD 33,663,324 between December 7, 2014 and September 7, 2018.
On Monday, Mr Taib said the DPP did not prefer the charges against the advocate for rendering professional services but there was evidence, including CR12 from the registrar of companies, showing that he was the company secretary.
“He is only posing as an innocent advocate for sympathy. Not only was he identified and described as a director of the company but also its authorized person. By his own admission, he confirmed that he is the company secretary since its registration in October 2014,” he said.
Mr Taib told the court that Mr Malebe cooperated with the company to commit crime and he should not escape by playing innocence. “The charges are brought in the enforcement of the criminal law, in good faith and there is no intention to bar the petitioner from his profession as an advocate, not to prevent him from practicing as such. The charges are premised on solid evidential and legal basis devoid of any extraneous considerations,” he said.
The court heard that although the contract was awarded to CMC Di Ravenna Itinera- South Africa, the Kenya branch received Sh4.3 billion for Arror and a further Sh3.5 billion for Kimwarer multi-purpose dam.
Mr Mabele, who is yet to plead to the graft charges, challenged his prosecution on claims that he was being persecuted for rendering professional services.
But in reply, Mr Taib said projects were concocted purely for purpose of looting public funds and the DPP considered all the facts and confirmed that there was enough evidence to secure a conviction against Mr Malebe.
Justice Ngugi will give her judgment on April 29.