Bizarre as Ksh 63Billion Arrow and Kimwarer dams case squelched

By Edwine OTIENO

The case against Kenya’s former Finance Cabinet Secretary Henry Rotich and eight other co-accused persons collapsed Thursday after an acquittal in the Ksh.63 billion Arror and Kimwarer.

In a December 14 ruling, Magistrate Nyutu weirdly said the prosecution “had failed to lead the case,” adding that there was no evidence tabled in court to show that the aforementioned failed to follow procurement laws in the high-profile muddy scandal.

This follows an October incident where two witnesses then, were discharged at the time as the prosecution, led by State Prosecutor Geoffrey Obiri, told Magistrate Eunice Nyotu’s court that the State did not have any questions for them.

The Magistrate however directed the lead prosecutor to proceed with the questioning, leading to Obiri discharging the two witnesses.

But yesterday, Thursday December 14, the court in its ruling, blamed the prosecution for leading 8 witnesses only out of the 49 witnesses they had intended to call.

“This would appear to be a prosecution led acquittal. All the accused persons in this case are whereby a quite sunder section 201 due to lack of evidence as a result of the reckless dereliction of duty by the prosecution,” ruled Magistrate Nyutu.

Through lawyer Kioko Kilukumi, Rotich questioned why the Asset Recovery Agency (ARA) has never traced any money lost or even frozen it.

Lawyer Phillip Nyachoti submitted that no witness gave any testimony against accused persons Kennedy Nyakudi and Jackson Kinyanjui.

“In view of the above we humble submit that all the charged leveled against the 2 and 3 accused person as per the amended charge sheet are untenable in light of the evidence before the court,” court was told.

David Kipchumba Kimosop, William Kipkemboi Maina, Paul Kipkoech Serem, Francis Chepkonga Kipkech, Titus Murithi and Geoffrey Mwangi Wahungu had also been charged in the graft case.

Arror and Kimwarer dams’ scandal in details

Kenya received Sh16.2 billion from Italian bank Intesa San Paolo for the construction of Arror and Kimwarer dams in a period when investigations into the misuse of funds in the project were ongoing.

The Treasury’s public debt registry shows that the Italian bank wired the billions in the year starting July 2019, just days after former Treasury Cabinet Secretary Henry Rotich was arrested on suspicion of financial misconduct related to the construction of the two dams.

This suggests that the arrests or ongoing probe of a suspect loan deal to finance the construction of Arror and Kimwarer dams did not stop Intesa San Paolo from releasing additional debt for the project.

The register shows that Kenya had received Sh3.4 billion ahead of July 2019 when reports of and investigations into the alleged financial misconduct linked to the construction of two dams were in the public domain.

In September 2019, former President Uhuru Kenyatta cancelled the projects after receiving a report from a technical committee, which he had formed following the discovery of irregularities and improprieties surrounding the two mega infrastructure projects.

The cancellations came in a financial year when Arror dam received Sh11 billion while an additional Sh5.2 billion meant for Kimwarer was wired to Kenya. The Spanish firm was supposed to disburse a total of Sh74.3 billion (578.2 million Euros) repayable over 14 years beginning May 2021.

The government made advance payments of Sh19 billion, including the Sh11 billion in unnecessary debt insurance, which prosecutors say was shared out in accounts belonging to the conspirators and their agents.

Mr Rotich is accused of hiding behind government- to- government procurement to single source the privately owned SACE and craft an exorbitant Sh11 billion cover for the dams’ project, which had hardly taken off because designs had not been drawn while the Kenya Forest Service had declined to provide land.

There were also concerns that the contractor CMC Di Ravenna- Itinera JV had gone bankrupt even after receiving Sh7.2 billion in advance pay for the project.

Evidence presented in court showed that CMC Di Ravenna- Itinera JV received Sh4.3 billion on September 27, 2018 as advance payment for Arror dam. For Kimwarer, an advanced payment of Sh3.5 billion was approved on July 2, 2018.

The payment in two tranches for both Kimwarer and Arror dams was made to a web of associated companies in Kenya, South Africa and Italy.

Additional Sources: Business Daily, Citizen Digital