The High Court has ordered a former Homa Bay County Assembly clerk and a couple to refund Sh12.57 million in public funds irregularly transferred to their joint bank account between 2015 and 2017.
The court found former Assembly Clerk Bob Kephas Otieno liable for authorising the payments, while Lilian Achieng, a secondary school teacher, and her husband, David Obonyo, a former bank manager in Homa Bay Town, were found liable for receiving public money for work not done or services not rendered.
“Having found that the 2nd and 3rd Defendants (the couple) received irregular payments for work not done, it is inevitable I must hold that the same should be restituted to the Government,” the court said.
Ethics and Anti-Corruption Commission (EACC), which filed the recovery suit, established that Otieno authorised transfers totalling Sh12,571,166.50 from the Assembly’s salary suspense account to the couple’s joint bank account.
Integrity Centre in Nairobi which houses the Ethics and Anti Corruption Commission offices.
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The payments were allegedly disguised as salary payments to Achieng, despite neither she or her husband being employees, suppliers, or contractors of the County Assembly or county government.
The commission further established that the couple’s joint account, which had reportedly remained dormant since it was opened in 2006, began receiving substantial sums from the county government and Assembly in 2015.
The transfers were made sporadically between December 24, 2015, and December 22, 2017, a pattern the commission said was inconsistent with regular salary payments.
The commission argued that the payments violated Section 196 of the Public Finance Management Act and Section 46 of the Anti-Corruption and Economic Crimes Act, 2003.
The defendants, however, denied wrongdoing, maintaining that the money was payment for services supplied to the Assembly through their company, Damila Enterprises.
Mr Otieno told the court that the Assembly had lost three members during the period, prompting direct procurement of catering services from the enterprise to meet emergency needs.
From left: Former Homa Bay County Assembly Clerk Bob Kephas, Chief Finance Officer of the House Caroline Sang, senior accounts clerk at the Assembly Maurice Amek, Everyone Awino Ogutu of Nyangume Enterprises, former Equity Bank Manager David Obonyo Mireri and Lilian Achieng' Aloo when they appeared before Homa Bay Chief Magistrate Julius Nangea on November 16, 2021.
Photo credit: File | Nation Media Group
He further claimed that Obonyo had instructed that payments for the services be deposited into their joint Equity Bank account.
Ms Achieng testified that she and her husband owned Damila Enterprises, which supplied goods and services to schools and other clients, including Homa Bay County.
She said the business had undertaken work for the Assembly, including constructing a perimeter wall and providing catering services during the funerals of three former Members of the County Assembly.
The court, however, found that the defendants had failed to provide sufficient evidence to account for the disputed funds.
It noted that documents presented in support of the alleged catering services included agreements between the Assembly and Damila Enterprises, as well as quotations, offers, awards and acceptance letters.
However, the documents accounted for only Sh7,106,890, leaving Sh5,464,276.50 unexplained.
The court observed that the defendants had admitted there was no tendering or procurement process for the three alleged catering services.
“My simple calculation shows a total of Kshs 7,106,890.00 for the three services. In that regard, even if I were to accept that the payments in question went to the alleged services, the Defendants have not explained the difference of Kshs 5,464,276.50,” the court stated.
The judge added that the unexplained payments, coupled with the absence of supporting documents, warranted an inference of fraud.
The court further observed that transferring public funds to an account that did not belong to the entity allegedly contracted raised concerns about the concealment of the funds’ intended purpose.
