It is a big win for Deputy President Rigathi Gachagua after Assets Recovery Agency(ARA) on Wednesday, February 1, 2023, agreed to have Ksh200 million forfeited to the state eight months ago refunded back to him.
Court of Appeal Judges Daniel Musinga, Imaana Laibuta and Ngenye Macharia on Wednesday morning set aside the High Court's order issued last year on July 28, 2022, forfeiting Gachagua's millions to the State after implication in Ksh7.3 billion graft case.
The judges have also quashed a High Court decision that declared the Ksh200 million belonging to Gachagua and his business associate Anne Kimemia as proceeds of crime.
"The funds held in account number 0012070000198, being Ksh 165 million account number 014207000047, being Ksh 35 million and account number 0012010006030, being Ksh773,228.33 all in the name of Rigathi Gachagua, held at Rafiki Microfinance Bank respectively, be forthwith released to Gachagua," the judges ordered.
They also ordered that the Ksh 1,138,142 held at Rafiki Microfinance Bank in the name of Jenne Enterprises be released to Anne Kimemia.
The new turn of events in the matter comes after ARA on December 30, 2022, filed court papers supporting his appeal and stated that it has established that the funds are not proceeds of crime as earlier alleged.
ARA through its investigating officer Sergeant Fredrick Musyoki informed the Court of Appeal that the agency never investigated allegations by the Directorate of Criminal Investigations (DCI) that Gachagua obtained the money fraudulently from various State institutions and the Bungoma County Government.
When the DCI raised the claim ARA moved and seized the wealth without conducting its own verification, the Court of Appeal heard.
The Agency now conceded that Gachagua obtained the money legitimately and there was no fraud involved in tenders awarded to his trading companies.
Gachagua's lawyer Kioko Kilukumi urged Judges Musinga, Laibuta and Ngenyeto to approve the amicable settlement agreement between his client and ARA which was filed in court on January 19, 2023, to have the case dropped.
The three judges allowed Gachagua's request and marked the case as closed after adopting the consent signed by lawyers of both sides.
"This court adopts the consent vide a letter dated January 19, 2023, signed by all the parties. It is so ordered," Justice Masinga stated.
Gachagua, who had argued that the case was politically instigated, got the money from business dealings with government institutions and Bungoma County Government between 2011 and 2016 after executing several contracts.
Gachagua was set free in November last year after the anti-corruption court in Nairobi allowed the Director of Public Prosecutions (DPP) Noordin Haji to withdraw graft charges against him.
Milimani Senior Principal Magistrate Victor Wakumile noted that the application to withdraw the case by the DPP was arrived at after the DCI failed to provide full disclosure of evidence implicating the DP and his co-accused in the corruption charges.
In allowing the DPP’s application, Wakumile said one could not prefer charges in anticipation of getting evidence.
He faulted the investigative bodies for presenting people in court while they were still fishing for evidence.
“The decision to charge must be exercised judiciously, sufficiently, impartially and independently,” the magistrate said.
“As courts of laws, we are no longer passive arbiters of everything and anything that is presented before us for adjudication. Never, in my view, should a judicial system be used as a stopgap measure or a doormat. There is a need to respect institutions.”
The decision by the court came after the DPP cited a lack of evidence in his application and blamed the DCI for the failure to complete investigations before the office recommended the six corruption charges against the accused.
Haji, through State counsels Grace Murungi and Vera Hamisi, informed the court that he believed that if the case was allowed to go to full trial based on the evidence available, his office would not be able to secure a conviction.
“The DPP independently reviewed the matter and concluded that the evidence, as it is, does not meet the evidential threshold required to mount a successful prosecution of this case,” Murungi said.
Gachagua, through lawyer Kilukumi, welcomed the decision by the DPP to withdraw the charges against him, while maintaining the stance that the case was politically instigated by the previous government.
“He was subjected to intense humiliation driven at breakneck speed from Nyeri to DCI headquarters. He was never presented to court until July 26, 2021,” Kilukumi stated.
Gachagua was charged with six counts that comprised acquiring proceeds of crime, conspiracy to commit corruption, conflict of interest, money laundering and fraudulent acquisition of public property.
In the case, Gachagua had been charged alongside nine others including Nyeri senator William Wahome Mwangi, Anne Nduta Ruo, Julianne Jahenda Makaa, Samuel Murimi, Grace Wambui Kariuki, Lawrence Kimaru, Irene Wambui Ndigiriri, David Reuben and a company M/s Rapid Medical Supplies.