The Ethics and Anti-Corruption Commission (EACC) has petitioned court to dismiss a case lodged by a Kenyan expatriate who is seeking Sh64 million compensation for damages over alleged malicious prosecution five years ago.
The anti-graft agency said it followed the law when it instituted the prosecution of Mutua Muthusi and others over a Sh30 million tender. Mr Muthusi is a former Director of Communication at the Communication Authority of Kenya (CA).
His case against EACC stems from a criminal trial in which he, together with eight tender committee members, was convicted and jailed by a magistrate court over the direct procurement of a Sh30 million contract.
The tender was for the refurbishing of the CA’s stand at the Nairobi International ASK Show in September 2014.
He moved to court early this year seeking damages for malicious prosecution, claiming that he was pulled from his current working station, Geneva Switzerland, and arraigned in court over false corruption claims.
He is now employed by the United Nations (UN) in Switzerland as director of development and cooperation for universal postal services. He was seconded by the Kenyan government to the UN in the same position.
Mr Muthusi says the filing of the graft case by the EACC embarrassed, humiliated, and portrayed him in a bad light internationally.
In the civil suit filed at the High Court in Milimani Nairobi through lawyer Eric Mutua, he states that his trial was malicious.
Additionally, he said the prosecution was intent on serving other interests or achieving other purposes as there was no evidence or prosecution witnesses linking him to the alleged corruption. He says when he landed a job at the UN, he opted for an early retirement from CA, only to be re-called home in May 2019 to face the criminal case.
“On May 15, 2019, the plaintiff (Mr Muthusi) was shocked to see his name splashed in both mainstream and social media together with other persons who were his colleagues at CA to the effect that they were under investigation and that he was being sought by EACC for arrest,” states Mr Muthusi in the court papers. At the time he was at Bern Switzerland.
Although he was away, Mr Muthusi was jointly charged alongside Joyce Nyaramba, Peris Nkonge, Stanley Kibe, John Omo, Leo Kibet Borruet, Vincent Ikoro Ngundi, Jane Jeptanui Rotich, and Philip Kipkemoi Kiplangat.
Despite the EACC, Director of Public Prosecutions, and Attorney-General knowing he was employed at UN and hence out of the country, he says that they took steps to have a warrant of arrest and summons issued against him for failure to appear in court.
He adds that to forestall an international warrant of arrest and further embarrassment, he wrote to the EACC and DPP in protest.
“Despite knowing the plaintiff held a diplomatic passport and was away in Geneva Switzerland, the DPP and EACC applied to the court to compel the accused to deposit his passports in court to prevent movement outside the jurisdiction of the court,” says lawyer Mutua.
Mr Muthusi flew back to Nairobi from Geneva to submit to the authority of the court on June 28, 2019, where he was charged with willful failure to comply with procurement law, contrary to Anti- Corruption and Economics Crimes Act.
The criminal case was closed on September 2, 2020, when they were convicted.
The verdict was however set aside by High Court judge Esther Maina on June 9, 2022, following a finding that the tender committee of CA had explained and demonstrated the urgency which gave rise to the direct procurement. The judge ruled that there was no irregularity.
“It is my finding that the time of five days created a legitimate urgency on the part of the Tender Committee to award the tender so as to give sufficient time to the contractor to deliver the service," ruled Justice Maina.
She added that "awarding the contract to refurbish the stand due to an impending visit by the Head of State to the ASK Show was not unreasonable and the urgency was indeed demonstrated and it was obvious that the direct procurement was not being used to avoid competition”.
Quashing the conviction and sentence, Justice Maina established that the trial court presided over by magistrate Eunice Nyutu “erred in basing its findings on the questions whose answers were never given either by the prosecution or the defence.”
Mr Muthusi says the prosecution did not have regard for the public interest in the administration of justice and the need to prevent and avoid abuse of the legal process.
"The DPP before, during, and after the prosecution maliciously and in bad faith and with intention of achieving ulterior motive published in its Twitter page, social media and mainstream media the proceedings and innuendos in respect of guilt of the plaintiff," states lawyer Mutua.
Mr Muthusi, a communications expert and professional of 35 years standing in journalism and public relations, says the DPP preferred unsubstantiated charges against him and others with a view to protecting other persons of interests at CA.
He adds that all the prosecution witnesses pointed to his innocence and that due to his intervention and the tender committee public funds were saved.
He claims that he was embarrassed when his diplomatic passport was detained and stop orders issued to the immigration department.
He has named EACC, the Director of Public Prosecutions (DPP) and the Attorney-General (AG) as the defendants in the suit.
Mr Muthusi further claims that he lost the reputation built over 35 years given that he coordinates technical assistance to developing countries by his employment. The suit is pending determination.
