There was a standoff at the Milimani Law Courts on Monday when the Director of Public Prosecutions refused to approve the prosecution of the National Water Harvesting and Storage Authority (NWHSA) acting Chief Executive Officer Geoffrey Sang following his arrest by the Directorate of Criminal Investigations (DCI).
Sang and three of his colleagues were arrested on Thursday, April 23, by a team of detectives from the Serious Crimes Unit at the DCI headquarters over a suspected dam construction scandal.
The ODPP refused to approve the charge sheets and directed that the original police file be taken to DPP Noordin Haji’s office.
Sang was, however, not in court but his lawyer presented a letter from a doctor indicating that he had been hospitalized.
The three are accused of a number of counts, including abuse of office, conspiracy to defeat the execution of a written law, neglect of official duty, and breach of trust by persons employed in the public service.
This is the second time the ODPP has refused to approve the charging of suspects in court in what now appears to a supremacy war between the office of the DCI and the ODPP.
Last month, the DCI arrested former Kenya Ports Authority managing director, Dr Daniel Manduku and Kenya Revenue Authority (KRA) Commissioner Kevin Safari, and attempted to prosecute them without sending files to the ODPP first.
The DPP through his assistant, Joseph Riungu, refused to charge the accused.
In one of the charges preferred by the DCI, the NWHSA CEO and the Human Resource boss are said to have on February 28 facilitated the appointment of Lydia K Korir, a procurement assistant to the head of procurement, without following the HR management policies of the authority.
Also presented in court on Monday was the authority’s senior security officer, Benard Ochieng Aseno, who as also charged with abuse of office on allegations that he allowed Nixon Kiprotich Bett, Noah Nondin Arap Too and Mutai Peter Kibett to access to the CEO’s office and cart away documents and electronic data belonging to the Authority.
On Thursday last week, detectives raided the Authority’s offices along Dunga Road and collected a number of documents related to the tender.
The project situated in Turkana County, meant in the long term to foster peace in the resource-based conflict region, entails the construction of an 18m high dam made of clay core and shell materials.
According to information on the Authority’s website, the project also entails water intake, the delivery pipeline of steel of 200mm diameter and 500m long, two communal water points and three cattle troughs.
“The government of Kenya through NWHSA, a state agency under the Ministry of Water and Sanitation and Irrigation, has set aside funds for the implementation of Naku’etum Peace Dam which is located in Turkana County.
“NWHSA intends to use funds to pay for the construction of the works for the same project for which qualified contractors are invited to submit tenders for the works,” says Sang’ in the Authority’s site. The tender was closed on February 12, 2020.
The NWHSA board Chairman, Erick Okeyo on Monday said he was aware of an ongoing probe but said he had not been adequately briefed about it. “I am only a month old here and yet to get a detailed brief,” he said.
Some of the documents in possession of the detectives show that the tender was awarded to J&K Investment Kenya Ltd at a cost Sh231, 114,402.64.
It was signed by Robert Kithinji on behalf of the contractor on March 26 and the NWHSA was represented by engineer David Gitau, the Authority’s chief engineer in charge of construction, on April 20, 2019.
Last week, the DCI through the Investigations Bureau (IB) boss John Kariuki issued a number of directives.
All the files that are pending before the court will only be submitted to ODPP after a request is received in writing.
The DCI also directed that no original files will be submitted to the ODPP and that all files to be forwarded shall be in duplicate form and documents if any shall be in copies properly marked.
“Files pending under investigations (PUI) are not be forwarded to DPP until the investigations are complete as this tends to interfere with the ongoing investigations thus hampering and delaying the investigation process unnecessarily,” he directed.
“It is the responsibility of the investigating officer to establish a good rapport with the prosecuting counsels and also make arrangements for pre-trials with the key witnesses. All files slotted for hearing are to be forwarded to court 3 days prior to the hearing date. Witnesses all bonded and exhibits ready for hearing,” he added.
To ensure that witnesses who are foreigners are not unnecessarily inconvenienced, detectives were directed to request, through State counsels, for a special hearing.
“Witnesses who have been threatened, intimidated, or harassed by suspects and the accused person should be protected through Witness Protection Agency (WPA). In case of any difficulty officers should consult the headquarters,” Kariuki said.
Detectives have also been advised not to furnish the defence or accused persons with exhibits they do not intend to produce as exhibit. They include the covering report, investigation diary and correspondences.
“The documents are meant for internal use only,” Kariuki directed.