Digital communication strategist Dennis Itumbi has lodged a fresh bid for the prosecution of former Interior Cabinet Secretary Fred Matiang'i over the suspected corruption scandal involving Ksh1.5 billion Ruaraka public land.
In letters received by the Office of Director of Public Prosecutions and the Ethics and Anti-Corruption Commission on Thursday, March 9, 2023, Itumbi wants the state to commence the prosecution of Matiang'i and 25 other unnamed individuals linked to the sale of Ruaraka land within seven days.
"We are requesting you to prosecute Dr. Fred Matiang'i for the loss of Sh 1.5 billion, taxpayers' money, with respect to the alleged compulsory acquisition of land for the benefit of two public schools, namely Ruaraka High school and Drive-In Primary school," reads the letter.
Through Waitheira and Kinuthia and Company Advocates, Itumbi wants DPP Noordin Haji to commence the prosecution of Matiang’i within seven days in respect of the alleged illegal payments failure to which he will again exercise his “right to privately prosecute” the former CS.
According to Itumbi, he is dissatisfied with the DPP's move to initially return the investigations file to EACC three times asking the Commission to tighten its case against the suspects but there is no information on the status and progress of the matter.
"You(DPP) returned the file three times recommending that EACC should include officers from the DCI, Land fraud Department, in order to have watertight evidence against the culprits who were to be charged. It is now three years since you returned the file with no action or response," Itumbu says.
In the letter addressed to EACC, Itumbi wants to be informed on the progress the commission has made in its investigations on Matiang’i and 25 unnamed individuals implicated in the scandal.
Should the commission fail to provide information on the progress it has made in its additional investigations, he says he will pursue the legal remedies available to him.
Itumbi's new move to have the former Cabinet Minister prosecuted comes more than two years after Milimani Anti-Corruption Chief magistrate Douglas Ogoti thwarted his bid to institute private prosecution.
Magistrate Ogoti his decision rendered on November 27, 2020, dismissed the private prosecution application by Itumbi on grounds that he failed to explain how he accessed information or documents in his affidavits that he intended to use against the then-powerful Cabinet Secretary. The magistrate found the documents inadmissible as evidence in court.
Itumbi had filed a 193-page application seeking to independently try Matiangi over a Ksh1.5 billion payment made by the education ministry during his tenure as the education secretary for the acquisition of a piece of land that the High Court later determined was public property.
He sought to prosecute Matiangi for abuse of office, wilful failure to comply with the law on the management of public funds, financial misconduct and conspiracy to defraud.
The alleged corruption occurred in 2016 when the Ministry of Education acquired a 13.77-acre parcel of land in Ruaraka for two public schools - Ruaraka High School and Drive Inn Primary School.
In his latest bid, Itumbi has questioned the inaction of both the ODPP and EACC on the alleged corruption scam.
He is banking on a decision in which a three-judge bench of the High Court in 2019 that established the compulsory acquisition of the land on which two schools sit fell short of public purpose since the land was public property.
The judges stated that the subject land is public land and “ought not to have been compulsorily acquired”.
In their ruling, Justices Bernard Eboso, Elijah Obaga and Kossy Bo had also faulted the National Land Commission (NLC) for advising the education ministry to proceed with the acquisition of a 13.77-acre parcel in Ruaraka on which two public schools sat.
“Even from your evidence presented in court, you (DPP) knew the truth, public money had been lost. In fact, you told the court that the National land Commission, sought to cleanse its questionable actions in paying Sh1.5 billion to Afrison Export Import Ltd and Hueland Limited as compensation for compulsorily acquiring their land for government use,” says his lawyer Waithera in the letter to DPP.
The lawyer adds that EACC forwarded the investigating file to the DPP containing documents and culprits to be charged in court, “ Matiang’i being amongst them”, with loss of public money.
“After reviewing the documents, the DPP returned the file three times recommending that EACC should include officers from the Directorate of Criminal Investigations, Land Fraud Department, in order to have a water tight evidence against the culprits who were to be charged,” she states.
When Itumbi first wrote to ODPP and EACC on October 5, 2020, requesting the prosecution of Matiang’i, the lawyer says he was met with an “I do not care” attitude from the offices. This necessitated him to file the failed private prosecution application, of which the DPP was a party.
Itumbi tells DPP Haji that the evidence that the magistrate found to be inadmissible were produced by EACC.
“It is quite unfortunate that our client was willing to use his private resources and conduct a private prosecution against Dr. Matiang’i to ensure restitution of stolen taxpayers’ money to combat the high cost of living that is currently being experienced,” he says.
“That step taken by our client two years was very unnecessary as the Constitution under Article 157 obligates you to direct the Inspector-General of National Police to investigate any allegation of criminal conduct against any person and subsequently prosecute the culprits”.
The matter first came to the limelight after two companies belonging to a renowned businessman Francis Muburu – Afrison Export Import Limited and Huelands Limited – had filed a claim with NLC over the compulsory acquisition of the land without compensation.
