Court orders return of Sh23.7m fines paid by ex-county officials convicted over graft

The High Court has ordered the government to return Sh23.7 million paid as fines by three former Nyeri County government officials who had been convicted for corruption.

Justice Teresia Matheka ruled that John Mwangi Maina, Martin Kanyuiga Wamwea and Simon Wachira Kagiri should be given back their money, which they paid on September 26, 2016 as an alternative for spending three years in jail.

A magistrate court had found them guilty of abuse of office, flouting procurement laws and irregularly awarding a tender worth Sh10 million and were each fined Sh7.9 million or serve a three-year imprisonment term.

But they appealed the decision and Justice Matheka cleared them.

State Counsel Kennedy Magoma opposed the release of the fines saying the Director of Public Prosecutions had filed an appeal against the judge’s verdict to discharge the three former officials.

But the trio, through lawyers Wilfred Nderitu, Ng’ang’a Munene and Muchiri Gathoni, told the court that the State had not made any application to stop the release of the said monies pending the hearing and determination of the appeal.

In the end Mr Magoma, left it to the court to decide the matter.

Fresh charges

Justice Matheka noted that the discharge of an accused person does not bar the prosecution from bringing fresh charges against the same accused on the same facts.

She explained that the accused persons are basically free until the moment that "Sword of Damocles" lands on them and are arraigned in court.

“In my judgment I made the finding that the prosecution still had the opportunity to bring proper charges against the appellants. No charge has been brought except that the State has filed an appeal,” stated Justice Matheka.

She also noted there was no justifiable reason to continue holding the said monies, since the Office of Director of Public Prosecution had not made an application to stop the release.

The three officials worked in the county executive committee in administration of the late governor Nderitu Gachagua.

Mr Maina was the County Executive Committee member in charge of Lands and Infrastructure, Mr Wamwea (finance) and Mr Wachira was the chief of staff.

Mr Maina was accused of irregularly awarding a contract for consultancy of audit services to Pleng Kenya Ltd through direct procurement without the approval of the county tender committee.
His counterpart, Mr Wamwea, was charged with abuse of office for authorising processing of Sh3,756,962 as payment to Pleng Kenya Ltd without the necessary supporting documents.

Mr Wachira faced two counts of failing to comply with procurement laws and improper use of public office.