An attempt by former NSSF manager Francis Moturi to quash the Sh2.5 billion mandatory fine imposed on him by an Anti-corruption court over graft related charges has been declined by the High Court.
Moturi filed an application at the High Court's Constitutional and Human Rights division seeking to have section 48 (1) (b) and (2) declared as unconstitutional.
Section 48 (1) (b) and (2) of the Anti-corruption Act provides that a person convicted of an offence shall be liable to an additional mandatory fine, if as a result of the conduct that constituted the offence the person received a quantifiable benefit or any other person suffered a quantifiable loss.
Anti-corruption Magistrate Lawrence Mugambi fined Moturi Sh1 million in default serve two years imprisonment in one of the counts. In the second count he was fined Sh1 million in default serve three years imprisonment.
The trial magistrate also imposed a mandatory fine of Sh2.4 billion for occasioning the pensioners to suffer a loss of Sh1.2 billion at the NSSF. The amount is twice the money that NSSF lost between 2004 and 2007.
It is this mandatory fine that Moturi was challenging.
Moturi argued that the section makes provision for multiple punishments for the same offence.
“The constitution limits the court from punishing a convicted person twice for the same offence in precisely the same manner it limits the prosecution from charging a person twice for the same offence,” he said.
He asked the court to determine whether the said section limits the accused’s persons right to a fair trial; and whether the sentence imposed against him by the magistrate pursuant to the challenged mandatory provisions occasioned an infringement of his rights as an accused person.
But Justice Hedwig Ong’undi after perusing the petition struck it out.
“The court can only deal with his request after satisfying itself of the soundness of the conviction. That is not the duty of this court. He should have filed an appeal against his conviction and sentence before the Anti-corruption division of the High Court. What is before this court is an appeal disguised as a constitutional petition. I strike it out,” said the judge.
Moturi had also filed an application for bail pending determination of his appeal but Justice Esther Maina of the Anti-corruption division dismissed it. She said Moturi’s arguments of being at an advanced age does not constitute exceptional circumstances.
Moturi was in January this year found guilty of knowingly misleading the fund into making payments totalling Sh1.4 billion through irregular trading in shares through Discount Securities Limited (DSL).
He was the head of the user department that was purchasing the shares.
He raised a total of 41 memos to the managing Trustee of the NSSF fund containing misleading statements to the effect that the fund stockbrokers-Discount Securities Limited-had purchased various quantities of shares of Kenya Commercial Banks, Barclays Bank of Kenya, Standard Chartered Bank, Bamburi Portland Cement Company Limited, Kengen and Nation Media Group at the Nairobi Stock Exchange on behalf of NSSF.
This made NSSF to commit to making payments totalling to Sh1.4 billion to DSL yet no shares had been purchased on behalf of the NSSF by DSL.
Moturi was also found guilty on the charge of conspiracy to defraud which attracted a penalty of three years imprisonment.
He faced this count together with Githaiga David, Wilfred Weru, Isaac Nyakundi and DSL.
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