An anti-corruption court has put former Nyandarua County Governor Daniel Waithaka Mwangi and five former top county officials on their defence after finding that the State has established a prima facie case against them in a Sh50 million case they are facing.
“After looking at the charges, evidence, submissions and exhibits on record, I find that the State has established a prima facie case against the accused. The accused therefore have a case to answer,” Senior Principle Magistrate Judith Wanjala ruled yesterday, sitting in Nyahururu.
Mr Waithaka Mwangi, five top officials of his administration and two contractors of Israeli origin were charged in court in 2018 following investigations by the Ethics and Anti-Corruption Commission (EACC). Their case has been ongoing ever since.
The two contractors, Chen Yochanan Ofer and Albert Attias were directors at Tahal Consulting Engineers Limited and were allegedly used as conduits to facilitate the fraud. The five former county officials include Grace Wanjiru Gitonga, County Executive Committee Member for Water; Martin Igecha Kimani, chief officer for Water Energy and Natural Resources; John Ngigi Daniel, Sub-County Water officer; Jesse Wachira Mwangi, former principle finance officer and; Simon Irungu, former senior economist Mr Waithaka and the senior County Officials engaged M/S TAHAL Consulting Engineers Limited to develop a County Water Master Plan and to design the Ol Kalou Town Sewerage System without following the procurement laws and regulations. They used direct procurement method, without obtaining prior written consent from the Nyandarua County Tender Committee.
The said procurement had not been planned for in the 2013/2014 financial year. Investigations disclosed that the then County Secretary, CEC Finance, and Chief Officer Finance, had advised that the services be procured through Public Private Partnership. The Governor however ignored them and chose to engage Tahal Consulting Engineers Limited through single sourcing.
As a result, the County paid the consultant Sh23,895,513 as advance payment and final payment of KShs26,575,000. TAHAL Consulting Engineers Limited is an international company incorporated in Israel. As at the time of entering into the contract with the County Government of Nyandarua, the company did not have a local subsidiary. Investigations revealed that in as much as Chen Yochanan Ofer and Albert Attias had presented themselves as representatives of TAHAL Consulting Engineers Limited, they were disowned by the said firm.
A company by the same name was registered in Kenya in the year 2016. At the end of the consultancy, payments were wired via RTGS to a bank account in Tel Aviv, Israel.
Efforts by the EACC to pursue the money in Israel hit a brick wall since Kenya and Israel do not have Mutual Legal Assistance arrangements. Worse still, Israel has a Foreign Policy which prohibits handing over of its citizens to be tried in foreign jurisdictions.
In the contract documents, the Governor signed on behalf of Nyandarua County Government contrary to the existing laws. A governor does not have the authority to enter into any such contract. According to the prevailing legal framework, Chief Officers of the respective Departments, who are the Accounting Officers, are the only ones authorized to enter into contracts.
The contract the Governor signed provided that TAHAL Consulting Engineers Limited would source for funds from Israel to execute the water project in the entire Nyandarua County after completion of consultancy services. However, the consultant disappeared in thin air immediately after being paid Sh50.5 million. The project has never seen the light of day to date.
Mr Waithaka and his cohort were charged with various counts including willful failure to comply with the law relating to procurement contrary to Section 45 (2) (b) of Anti-Corruption and Economic Crimes Act (ACECA) 2003 and abuse of office contrary to Section 46 as read with section 48 (1) of ACECA, 2003.
The charges against Tahal Consulting Engineers Limited and its purported directors, Chen Yochanan Ofer and Albert Attias, were dropped because they could not be traced and their existence could not be established. The case will be mentioned on March 17 when parties will pick hearing dates.
