Court allows EACC to recover Sh8.9m from Ex-Tourism PS Nabutola

The anti-corruption watchdog has received the court’s nod to recover Sh8.9 million from former Tourism Principal Secretary Rebecca Nabutola and three others following a finding that the money is proceeds of crime.

Justice Esther Maina allowed the Ethics and Anti-Corruption Commission (EACC) to recover the sum of Sh8,925,444 from Ms Nabutola, former Kenya Tourism Board (KTB) managing director Achieng Ong'ong'a, businessman Duncan Muriuki and Maniago Safaris Ltd jointly.

The judge said EACC had proved its case against the four defendants as she dismissed an argument that the anti-graft agency could not recover the money since the defendants had been found culpable by the trial court.

“The court noted that in the appeal, the issue of restitution was not considered. Recovery or forfeiture proceedings are not dependent on the outcome of criminal proceedings. The criminal proceedings were only concerned with criminal culpability of the defendants,” said the judge.

The money was lost in 2007 after the private company was paid for alleged unrendered services of tourism marketing and promotion activities trip during the financial year 2007/2008.

Justice Maina found that the company was unjustly enriched by receiving the sum of money.

The case stemmed from a tourism promotion campaign organised by the Ministry at the Masai Mara Game Reserve in October 2007. The monies subject of the suit were not accounted for.

The court found that the former PS and the former KTB MD allowed the money to be paid out without any budget.

In addition, there was no tendering and the procurement process was not followed. As a result, the judge said the defendants were found culpable by both trial court and High Court.

“This court finds that the fourth defendant was unjustly enriched by receiving this sum of Sh8,925,440. The whole trip that is subject of the suit and the criminal proceedings in the lower court the total cost was Sh946,604. There is doubt as to why the sum of Sh8 million was paid to the fourth defendant,” said Justice Maina.

The court also found that the Catering and Tourism Development levy Trustees (CTDLT), which paid the money, was a public body and its successor the Tourism Fund is also a public body under the state corporations Act.

Hence, she said EACC was correct is seeking the recovery of the lost public funds.

Stating that EACC had proved its case, Justice Maina directed the defendants to jointly pay the money together with interest from 2016 when the recovery suit was filed until payment in full plus costs incurred in the court process.

She however suspended execution of the judgment for 30 days to allow the defendants pursue an appeal.

Ms Nabutola was accused of abusing her office by improperly appointing Maniago Safaris to co-ordinate transport for Permanent Secretaries to the game reserve and instructing the Catering and Tourism Development Levy Trustees to make the payments.

Together with Mr Ong’ong’a and Mr Muriuki they were convicted of various offences jointly ranging from conspiracy to defraud, abuse of office and willful failure to comply with the law relating to procurement.

They were also convicted for fraudulently making payment from public revenues for services not rendered, conflict of interest and fraudulent acquisition of public property.