Defence PS faces jail for blocking pay to contractor

Defence principal secretary Saitoti Torome. FILE PHOTO | NMG
Defence principal secretary Saitoti Torome. FILE PHOTO | NMG 

Defence ministry principal secretary Saitoti Torome risks jail after being found in contempt of court for stalling a Sh1.4 billion award to a contractor.

Mr Torome and lawyers from the Attorney-General’s office did not show up on Tuesday when Justice Grace Nzioka was to issue a sentence to the Defence PS for stalling a Sh1 billion award to Kay Construction which is seeking the payment for work on the Laikipia Airbase.

Attorney-General Githu Muigai has been summoned to appear before the judge to explain why lawyers from his office failed to attend a court session that was intended for the sentencing of Mr Torome.

Justice Nzioka had last month found Mr Torome in contempt of court after ruling that the Defence PS has been aware of Kay Construction’s award but stalled its payment, having met the firm’s representatives over the dispute.

Under Kenyan laws, contempt of court is punishable with a jail term of up to six months, or a fine not exceeding Sh200,000. A judge can however at his or her discretion slap an individual in contempt with both a fine and jail term.

Kay Construction has been pursuing payment for the runway works since 1994 when it completed the rehabilitation of Laikipia Air Base’s runway.

Arbitrator Joseph Thuo in 2011 ordered that the government pays Kay Construction Sh335 million for the work on the Laikipia Air Base. He also ordered that the amount would gain a 16 per cent interest from 2009 until the construction firm is paid in full. The award has since ballooned to over Sh1.4 billion.

The construction firm in 2014 successfully sued to have the Defence ministry compelled to pay it the award. Kay Construction last year filed a contempt of court application against then Defence PS Peter Kaberia. The Defence ministry and Kay Construction have since engaged in out-of-court talks. The negotiations continued after Mr Torome took over as Defence PS in April this year.

“From the foregoing, it is clear that the PS has all along been aware of this matter and actively participated therein and is thus in contempt of the order issued in civil case 39 of 2014, to pay Kay Construction the decretal sum which unfortunately to the detriment of the taxpayer continues to accrue unfounded interest,” Justice Nzioka held in her ruling.

Following negotiations between the Defence ministry and Kay Construction, the contractor last year agreed to accept Sh850 million on condition that it would be paid by May this year.

Kay Construction says the payment of its award had received approval from the Pending Bills Committee, the Treasury and the AG’s office but that the Defence ministry had still refused to release its money.

The AG’s office had in March told Justice Nzioka that the Defence ministry that it would settle the payment matter a month later and the suit was adjourned.

The judge again adjourned the matter three times in June, when Kay Construction eventually opted to renew its pursuit for contempt of court proceedings.

Justice Nzioka had said that Mr Torome would be given an opportunity to mitigate his sentence before she prescribes his punishment but the Defence PS failed to appear in court on Tuesday.