Former Independent Electoral and Boundaries Commission (IEBC) CEO James Oswago has been ordered to pay a fine of Sh7.5 million over his involvement in the irregular award of Sh1.3 billion tender for the supply of voter materials in the 2013 General elections.
If he fails to pay he will have to serve 4 years behind bars.
The same case applies to Wilson Shollei who at the time was former IEBC Deputy Commission Secretary in charge of Support Services.
Trial Magistrate Felix Kombo said the two failed to comply with the law relating to procurement when they procured electronic voter identification devices for the March 4 General elections.
He said it was incumbent upon Oswago and Shollei to advise the commission plenary sitting on the procurement of the devices and any variations would have required amendment of the contract to be approved by the tender committee.
The magistrate in convicting them termed their actions as a deliberate and wilful acts.
"Both of them had a legal duty to ensure the procurement breaches were not committed," Kombo ruled.
He also said Oswago being the accounting officer was made primarily responsible by the law to ensure IEBC complies with procurement laws.
The court said the duo's actions put the integrity of the elections to the test.
"There would have been no issues of specifications and change of numbers if the tender was properly drawn. The crisis was self-inflicted and put country stability in danger," said Kombo
In 2013, Oswago and Shollei were arraigned in court and charged with failing to comply with the law relating to procurement.
The two allegedly failed to ensure the changes made to the contract awarded to Face Technologies Limited by the IEBC for the supply of Electronic Voter Identification in Tender No. IEBC14/2011-2012 were approved by IEBC tender committee.
On a different count, they were accused of using their offices to improperly confer a benefit on Face Technologies Limited by approving payment of Sh1,397,724,925.51 for the supply of EVIDs without ascertaining that the devices supplied were inspected, accepted and met the technical specifications in the contract.
But Oswago during the hearing of the case maintained that it was not his role to inspect the goods.
He also said that he was never made aware when the Evid devices were delivered to the warehouse.
“I only became aware of the deliveries when they were being used at Kasarani. When they were delivered in the warehouse, nobody told me these items had been delivered,” he said.
It was his defence that the only contract he signed was that of December 11 for the delivery of 30,000 devices but later a board meeting was held raising the necessity for an additional 4600 gadgets.
He said he was not part of the decision to procure more.
On Monday, Magistrate Kombo dismissed claims made in court that the additional 4600 devices were procured by the UNDP.
He said the defence put up by the two that the additional devices were a subject of a separate procurement cannot stand.
The court also noted that IEBC didn't give approval for amendment or variation of the contract.
The court further observed that failure to conduct an inspection as was required leads to severe consequences on elections.
The case has been in court since 2013.
30 prosecution witnesses testified and over 100 documentary exhibits were produced as evidence.
It took the Magistrate 5 hours to deliver his judgment and another hour to sentence the convicts.