Former Nairobi Governor Mike Mbuvi Sonko has questioned the decision of the Director of Public Prosecutions (DPP) to withdraw charges against directors of a company allegedly involved in multi-billion-shilling graft scandals.
According to a petition lodged at the High Court, Sonko challenges the DPP to explain why the directors of Web Tribe Ltd — trading as JamboPay — were dropped from the Sh357 million corruption case involving him and others.
Sonko also questions why the same directors were dropped from another graft case involving the loss of Sh1.1 billion at the National Hospital Insurance Fund (NHIF) in 2019.
The DPP has turned the directors of the company, who were initially accused persons in the two criminal cases, into State witnesses.
Sonko says the DPP has discriminately and in abuse of his powers entered into an illegal and unholy alliance to exonerate and excuse the directors and protect them from glaring culpability by withdrawing the charges against them.
He describes the decision to turn the two directors into State witnesses as an abuse of power by the DPP, the Ethics and Anti-Corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI).
"They (DPP, EACC and DCI) were guided by conniving, conspiracy, fraud, discrimination and a biased, illegal, unjustifiable and unconstitutional turn of events, hence occasioning loss of public funds. They withdrew the charges so as to testify against the accused persons, including the petitioner,” he argues.
According to the ousted governor, Mr Muchemi was adversely mentioned in the Sh357 million graft case, therefore the DPP’s criteria of “cherry picking who can be a State witness is fraught with irregularities and illegalities, and is invalid”.
In his view, in making Mr Muchemi a State witness against him and further withdrawing the charges against him (Muchemi) in the NHIF case, is an action which is tantamount to abuse of the process of criminal prosecutions.
This is because public funds to the tune of over Sh1.1 billion were lost at NHIF and there was no agreement for Mr Muchemi to repay the said amount.
Sonko adds that during the hearing of one of the graft cases facing him, evidence was led to the effect that a civil society group by the name Bunge la Mwananchi had made a report to the DCI on the loss of public funds to the tune of Sh15 billion in the County of Nairobi.
Misappropriation of funds
He says the loss was as a result of theft and misappropriation of funds by Web Tribe through the JamboPay System.
It also became apparent that the DPP had written to the DCI asking for a progress report of the said investigations, he adds.
"But notwithstanding the pendency of the said investigation and, in an obvious conflict and paradox, the respondents proceeded to insulate Danson Muchemi and Web Tribe Limited from the investigations by placing him under witness protection and excusing him from responsibility and criminal culpability which threatens the loss of public funds to the tune of Sh15 billion, property of Nairobi county government and the public at large," says Sonko.
In his view, Mr Muchemi and his company cannot have rightfully, lawfully and constitutionally obtained pardon from the public through the DPP.
He says the public is condemned to suffer double and even multiple jeopardy due to loss of funds at the NHIF and Sh15 billion at the county government.
"Muchemi and Web Tribe Limited have been persistently, consistently and insistently adversely indicted in successive Auditor General’s audit reports for Nairobi county for the financial years 2014, 2015, 2016, 2017, 2018 and 2019 as having misappropriated public funds," adds Sonko.
He says that through a contract to provide cashless revenue collection solution to Nairobi county, Mr Muchemi and Web Tribe Limited provided a solution called JamboPay System, through which the two are indicted by the Auditor-General, National Assembly, County Assembly, the Senate, DCI, EACC and ODPP for contravening various laws such as the Public Finance Management Act.
"The respondents ought to exercise public trust in their respective offices in a manner that is consistent with the purposes and objects of the Constitution," he says.
"(They ought to) maintain high standards of performance and level of professionalism to avoid misuse of their office in favour of Danson Muchemi, Web Tribe Limited and Robert Muriithi, especially in any suspicious manner that would enrich them unjustly; and not to engage in activities that would amount to an abuse of office and to avoid conflict of interest at all times," argues Sonko.
Converting an accused or suspect in a matter that he or she has already been charged for embezzlement of public funds into a State witness and placing him or her in witness protection using public funds violates Article 201 of the Constitution of Kenya, Sonko argues.
He adds that the actions of the DPP amount to aiding the suspects to get away with loss of public funds.
The petition is pending hearing at the High Court in Milimani after it was transferred from Machakos.
