Controller of Budget Margaret Nyakang'o has gotten a major reprieve after the High Court barred the State from prosecuting her over the Ksh6 billion controversial buyout of Telkom Kenya.
Justice Chacha Mwita of the Milimani High court has barred The Office of the Director of Public Prosecutions (ODPP) and Ethics and Anti-Corruption Commission (EACC) from arresting and preferring any charges against Nyakang'o until her case is heard and determined.
"A conservatory order is hereby issued restraining the respondents from arresting, charging or prosecuting the petitioner in relation to matters pertaining to her duties as the Controller of Budget until March 13, 2024," Justice Mwita has ordered.
The judge has directed the DPP and EACC to file their responses to the case within seven days.
The order was issued after Nyakang’o through lawyer Danstan Omari told the court that she was fearful that the Ethics and Anti-corruption Commission, the Director of Public Prosecutions and the Attorney General (respondents) were devising a plan including having her take plea in a bid to remove her from office.
Omari told the judge that his client Nyakang’o is perturbed by news of criminal charges against her after an alleged inquiry into the allegations of conflict of interest and corruption in the acquisition of Telkom Kenya shares by the government of Kenya from Helios Investments Limited at a cost of Ksh6 billion in the financial year 2022/2023.
“I believe my tribulation emanates from my recent whistleblowing where I indicated that I was forced to approve or release Ksh15 billion and therefore l am being pursued to satisfy ulterior political motives while publicly and calculatedly creating an impression in the mind of the public that she is guilty, which violates her right to a fair trial and the presumption of innocence." Nyakang'o told Justice Mwita.
While seeking the contravention to prevent that monumental abuse of power and injustice by the DPP, DCI and the AG, Nyakang'o told Justice Mwita her intended prosecution clearly depicts a politically orchestrated endeavour.
In her court papers, the Controller of Budget invited the court to insist on defending the rule of law and due process to avert any imminent excesses by politically connected individuals in government.
"The constitutional powers of the respondents (the DPP, EACC and AG) are on the verge of being abused and misused to harass, intimidate and oppress me and to achieve extraneous political purposes unconnected with upholding the Law and objectives of the system of the administration of justice and that l will not receive a square deal contrary to her rights in the constitution under Articles 27(1), 28. 50 (1) and (2)," she said.
In her affidavit filed in court, Nyakang'o says she is innocent and has not committed any criminal offence as alleged by the government.
"I have not committed any offence in Kenya nor have I been involved in any criminal activity whether by myself or jointly with any other person. l pray that the court protects me from any intended capricious and arbitrary course of action by the Respondents," Nyakang'o told Justice Mwita.
She now wants the court to find that any investigations against her in relation to her duties as Controller of Budget, by the Directorate of Criminal Investigations (DCI) and subsequent and or continued charge by the DPP shall violate her constitutional rights, is an abuse of the process of the court and therefore unlawful, null and void.
"An order of prohibition be issued prohibiting the respondents from proceeding with any prosecution/charges against the petitioner before she is subjected to Public Service Commission disciplinary: processes and or removal under relevant laws," the petition reads.
Nyakong'o moved to court after the EACC last week on Friday issued a statement seeking to have her prosecuted over the Telcom case.
The anti-graft agency said they want the DPP to recommend the prosecution of Nayakngo and former Treasury CS Ukur Yatani over several charges in the Telkom buy-out plan that includes money laundering.
EACC CEO Twalib Mbarak said that their investigations established that during the buy-out plan, the Attorney General's advice was ignored and his opinion was not factored in the contract with the Communication Authority (CA) also said not to have approved the acquisition of the 60 per cent shares thus the acquisition of shares by the government from Jamhuri Holdings did not meet the threshold.
In addition, EACC said they want the embattled Controller of Budget Nyakang'o charged over her role in the release of the colossal amount of money to aid the buy-out deal that happened a few days before the last general election.
Others whom EACC wants to be prosecuted include the former Director General of Public Investments and Portfolio Management Eng. Stanley Kamau, Paul Cunningham who is the director of Jamhuri Holdings Ltd and Telkom CEO Paul Mugo Kibati.
Others include Telkom Board Chair Edward Njoroge, Julius Kiplangat Cheptiony, JHL transaction advisor John Ngumi, Kosi Ali and Alan Wainaina Kongo.
The intended new corruption charges against Nyakang'o come after she obtained orders last week to suspend her criminal case in Mombasa until May 2024.
