EACC obtains orders to recover Sh8.6m from ex-State officer

The Ethics and Anti-Corruption Commission (EACC) has received orders to recover Sh8.6 million from an ex-head of procurement of the Ministry of Local Government.

The ministry was functional during the tenure of Raila Odinga as the Prime Minister.

The orders issued by Judge John Onyiego of the Nairobi Anti-Corruption Court awarded interest of the amount at the court rate.

"....judgment therefore entered for recovery of Sh8.6m. Sh 1,300,000 already recovered shall remain in the plaintiff's (EACC) custody as money recovered in advance," the judge directed.

EACC had moved to court seeking to recover the amount following investigations into a case of fraudulent procurement of land by the city council of Nairobi.

The land was to be used for the establishment of a public cemetery and the procurement was for Sh283.2 million.

Investigations established that some public officers had taken part in and benefitted from the fraudulent procurement.

During the probe, EACC found that on December 19, 2008, the land owner entered into an agreement for its sale with a company for Sh110 million.

On the same day, however, the Nairobi city council entered into an unlawful sale agreement and purportedly purchased the same land at Sh283,200,000.

The anti-graft commission told the court that the procurement process and financial transaction had illegalities including that the city council entered into a sale agreement with a party who was not a bidder or a successful bidder for the sale of the land in question.

It also said the land was not fit for the establishment of a public cemetery and that the sale between the city council and the owner of the land was forged.

The Commission sued two former officers of the ministry including former officers - chief finance officer Herman Chavera and head of procurement Boniface Misera.

It told the court that the two had received Sh10 million through a bank account linked to a private citizen and the Commission had managed to recover Sh1.3 million from the men.

It had also recovered Sh100,000 paid to the private citizen, leaving the Sh8.6 million sought.

In its suit, EACC said the defendants had jointly and unjustly enriched themselves with the money, which should be recovered from them as restitution to the city council.

Chavera however denied involvement in any fraudulent activity in relation to and or sale transactions involving the tender for the purchase of the aforesaid land.

He said the tender process was advertised, processed and awarded to the successful bidder by the then city council of Nairobi hence he was not privy to any fraud committed by the tendering committee.

This, he said, was because he was deployed at the central government which had undertaken to finance the project of the city council which was tasked with the responsibility of buying land for a public cemetery.

Chavera added that the tender award and the sale transaction were never nullified and hence had no reason to suspect that there was any illegal transaction.

"That his role was to disburse funds upon receipt of the request by the city council of Nairobi and authorization by his seniors," the court documents read.

He denied the allegation that he was a beneficiary of any funds from the city council whether jointly with Misera or individually.

On his part, Misera said he was not aware of the said sale agreement and tender transactions with regard to the land in question.

He denied receipt of any money from the city council or involvement in any corruption-related activities in so far as the sale agreement, tender award and subsequent payment of Sh283.2 million was concerned.

EACC had six witnesses, among whom was the then director of the city council who testified that around the year 2008-2009, he placed an advert in the local publications for expression of interest from the public for the sale of land to the city council of Nairobi for the establishment of a public cemetery.

Then the city council planner told the court that he accompanied the technical evaluation committee to various sites on land located in Kitengela, Isinya, Magadi and Kangundo to ascertain their suitability for public cemetery use as per the specifications of the tender documents.

According to the witness, none of the proposed lands met the criteria set out in the tender document.

The requirements included that the land was supposed to have had murram soil up to 6 feet for ease of digging graves.

The views of the committee were however ignored, which was corroborated by then senior funeral superintendent of Nairobi city council.

Then the deputy physical planner testified that he was instructed by the town clerk to carry out a tender evaluation with respect to bids submitted for the purchase of land by the city council for the establishment of a public cemetery.

He said there were 12 bidders among them, the company that was later awarded the said tender.

The witness said none of the 12 bidders met the criteria and that his sentiments to the technical evaluation committee were ignored.

Also among the witnesses, was a valuer who stated that the valuation report relied on to value the land intended to be purchased by the city council was a forgery and did not emanate from his department.

He added that a request was made by the clerk to the city council for the valuation of the subject land but no action was made as some information sought was never supplied hence the matter according to him rested there.

On his part, the officer who investigated the matter produced a national bank payment voucher for a sum of Sh10,000,000 dated February 25, 2009.

He also produced a copy of the forged valuation report valuing the subject land at Sh325,150,000.

He also found that the signature of the purported transferee of the land was also forged.

Chavera denied playing any role in the procurement process, adding that any payment he made, was on instruction from his bosses.

Misera did not however appear for the hearing despite having filed a statement of defence.

After deliberating the matter, Judge Onyiego found that the tender process was fraudulent.

"From the above revelation, it is obvious that the tender process and award were tainted with illegalities and fraud. As a consequence, the money paid out of a fraud process was irregular and unlawful hence recoverable," he said.

He however stated that the defendants were not involved in any way in the process of the procurement process and eventual award.

"The people concerned were city council officials and not the defendants. Their role was limited to implementing what had already been approved by the procuring entity and sanctioned by their seniors among them the PS local government. They had no legal capacity to challenge a tender that had been passed by the relevant procurement entity," he added.

Onyiega further established that the money paid went through the head procurement officer, being Misera, who got a cut.

"Obviously, the 2nd defendant (Misera) had knowledge that the money he was receiving secretly was not clean money and hence obtained the same corruptly. It was a benefit out of money obtained through a flawed system of procurement," court papers read.

He found that the evidence was overwhelming and took into account that Misera had not challenged the case.

In Chavera's case, however, the court found that EACC had not presented any concrete evidence to connect him with the money received by Misera.

" I do not find any evidence to prove that the 1st defendant (Chavera) received any money. To that extent, the claim against the 1st defendant has no merit hence dismissed, " Judge Onyiego said.

"In a nutshell, it is my finding that the plaintiff ( EACC) has proved its case on a balance of probability against the 2nd defendant (Misera) and judgment therefore entered for recovery of Sh8.6m. Sh1,300,000 already recovered shall remain in the plaintiff's custody as money recovered in advance."

"The suit against the 1st defendant (Chavera) is dismissed with no order as to costs."