- Waititu has defended himself in the case saying he was wrongfully charged as the offences were politically instigated.
- But as the High Court handed them a lifeline, the case against Waititu, Wangari, Luka, and the directors of Testimony proceeded to full trial.
Image: DOUGLAS OKIDDY
Former Kiambu governor Ferdinand Waititu will soon know whether he will be convicted or set free over the Sh588 million graft charges instituted against him in June 2019.
This is after the Anti-Corruption Court on Tuesday this week marked the defence hearing of the former county chief and 12 others as closed.
Waititu has defended himself in the case, saying he was wrongfully charged as the offences were politically instigated.
He faces the charges alongside his wife Susan Wangari, former County Chief Officer for Roads Luka Mwangi, Testimony Enterprises Limited director Charles Chege, and his wife Beth Wangeci.
Tender committee members Zacharia Mbugua, Joyce Ngina, Simon Kang’ethe, Anslem Wanjiku, and Samuel Muigai were also part of those being tried but were let off the hook after they challenged their prosecution at the High Court.
Justice Esther Maina found that the charge and proceedings against the tender committee members were unconstitutional and an abuse of the legal process.
Their offence before the determination by the high court was that they failed to comply with the law relating to procurement.
But as the High Court handed them a lifeline, the case against Waititu, Wangari, Luka, and the directors of Testimony proceeded to full trial.
32 witnesses
Prosecution produced a total of 32 witnesses to prove their case against the accused persons. Trial Magistrate Thomas Nzyoki later found them to have a case to answer and subsequently placed them on their defence.
From the charges registered in court, Waititu and his wife have been accused of receiving a total of Sh51 million through their companies, Saika Two Estate Developers Ltd and Benvenue Delta Hotel, where it was alleged that they engaged in a conflict of interest and dealing with suspect property.
According to the charge sheet, they received these monies from Testimony Enterprises.
Waititu's defence
But Waititu, in his defence, has claimed that these monies were paid to him after selling land to Chege.
He produced in court a power of attorney dated April 2018, which indicated that the owner of the land had been permitted by her children to dispose of the property to Waititu.
The prosecution has since taken issue with his line of defence and the document produced saying that Waititu sold the land before acquiring it.
It is alleged that he sold the land to Chege on January 3, 2018, yet the power of attorney was dated April 2018.
The plot to defraud the county government was allegedly hatched on February 26, 2018, when the directors of Testimony submitted their bid documents to secure the lucrative tender.
It's the prosecution's case that the company used forged documents in a bid to be awarded the tender.
Alleged forged documents
The investigating officer who testified in court in June last year tabled a number of documents alleging that the award of the road tender to Testimony Enterprises was irregular.
Among them were the forged academic certificates allegedly presented by Testimony and a document alleging that a Chinese firm had entered into a sub-contract with Testimony Ltd. The letterhead in the document, according to the EACC was not authentic, and the signatures were not from their staff.
The alleged forged academic certificates of technical staff are said to have been presented by Chege to convince the county that his company was capable of undertaking the road construction works.
Chege during his defence was unable to produce evidence to counter these claims by the production counsels.
In order for bidders to qualify, they had to demonstrate that they had participated as a contractor or subcontractor.
They were also required to show they had five staff members who possessed certain requirements.
For instance, a site agent must have a Bachelor of Science Civil Engineering degree with 10 years of experience.
To comply, the witness said he attached a number of documents to his bid papers. It is these documents that the EACC said were forged.
Chege has, however, maintained his innocence, saying, "I just won a tender and was paid for services rendered."
The tender in question
The tender in question was issued on February 12, 2018, and awarded to Testimony Enterprise, owned by Charles Chege and Beth Wangeci Mburu, after quoting Sh588 million.
The tender was for upgrading of various gravel roads in Thika, Limuru, Gatundu North, Juja, and Ruiru Subcounties during the financial year 2017-2018.
Wahinya, who was the Chief Roads Officer at the time, has maintained that he followed due process even after Justus Bundi, Director of Supply Chain Management, took issue with the tender after the evaluation committee introduced new criteria for bidders to qualify for the job.
Bundi, in his testimony before the court, said that serialisation of tender documents and form tender changed the outcome of the bid.
Form Tender captures the total of the bid and the name and contact of the bidder.
He said the award of the tender was questionable because it did not conform to the eligibility and other mandatory requirements in the documents.
He recommended that the accounting officer Wahinya order for re-evaluation of the tender by the same committee or appoint another ad hoc committee to re-evaluate and compare the results.
But this was not adhered to, he said.
Wahinya, in his testimony before the court, said the observations made by Bundi could not have affected anything, and that is why he proceeded to award the tender to the recommended lowest evaluated bidder—Testimony Enterprises.
The case is set to be mentioned on October 3 to confirm if parties will have filed their written submissions before the court issuing a judgment date.