The High Court has declined to review an out-of-court deal between the Ethics and Anti-Corruption Commission (EACC) and a City Hall procurement officer accused of amassing multi-million-shilling property through kickbacks for tenders at the county government.
Justice Esther Maina declined to vary the deal between EACC and Mr Michael Auka Ajwang, saying there was no evidence of fraud or collusion when the parties recorded the consent on July 14.
Mr Ajwang worked at City Hall as a procurement officer in the Department of Supply Chain Management.
The anti-graft agency wanted the deal set aside, arguing that Mr Ajwang had reneged on the part of the deal requiring him to pay Sh22 million to the commission within 30 days. He is instead proposing that the commission sell the land in question through a public auction to recover the money.
According to the EACC, the auction was not part of the deal and the arrangement would cost the taxpayers.
Mr Ajwang maintained that he was not in breach of the consent since the law dictated that the asset in question but not its value, should be the one to be surrendered to the government.
“The fact that the respondents did not pay the sum of Sh22 million as agreed in the first clause would not constitute a sufficient reason to set aside the consent given that the agreement has a default clause upon which the Commission was to fall back on,” said the judge.
According to Justice Maina, the anti-graft agency did not demonstrate its inability to execute that default clause by auctioning the land.
The agency was initially targeting 11 cars, a three-star hotel in Kisumu and three motorcycles allegedly linked to kickbacks of tenders in the city county.
In the deal, the commission and Mr Ajwang agreed that the cumulative value of the properties targeted was Sh198,000 million.
Mr Ajwang was to pay Sh22 million as part of the deal for him to keep a parcel of land in South Sakwa.
Another Sh176 million, being the cost of developments of The Hydeout Riviera Hotel, was to be paid to Ajwang and eight others, within 12 months from the date of the judgment.
In default, the parties had agreed that the three-star hotel be hived off from a parcel of land in Kisumu and the EACC would be free to auction it to get the money.
Mr Ajwang was ordered to forfeit Sh799,000 cash that was seized from him.
