Three aides of President William Rut o sued by an American software developer on breach of contract allegations have denied knowledge of a spying programme and urged the court to dismiss their accuser’s petition regarding an illegal project.
Head of Public Service Felix Koskei, Treasury Principal Secretary Chris Kiptoo and Attorney General, Dorcas Oduor, have filed a joint response through the office of the Attorney General, dismissing the purported procurement of the software to spy on Kenyans as alleged by Ms Mary Wachuka, the proprietor of Jipe Inc.
Ms Wachuka has listed the three alongside the president’s speechwriter Eric Ng’eno and tycoon Jayesh Saini as respondents in a suit seeking $2, 246, 322 (Sh292 million) as compensation for alleged breach of contract, citing the botched procurement of the software to suppress online government criticism and undertake mass surveillance.
Mr Saini has also denied any involvement in the deal through a response filed by his lawyers, Rachier and Omollo advocates.
However, Mr Ng’eno is yet to respond to the suit lodged at the High Court’s Milimani tax division. The petitioner has now asked the court to enter judgment against him totaling $2, 246, 322 with cost and interest.
In their joint 22-point rejoinder to Ms Wachuka’s claim about the purported acquisition of an online propaganda machine to counter hostility against President Ruto’s administration and shore up his 2027 re-election campaign, Mr Koskei, Mr Kiptoo and the AG say “they are complete strangers to the said contract as none of them is party to it.” They want her case against them dismissed with costs.
The government officials accuse Ms Wachuka of admission of a crime by lodging a claim citing a software she says was to be designed to perform 10 critical functions including mass surveillance against privacy laws, public deception as well as snooping on opposition leaders.
“Defendants aver that such a software that the plaintiffs intended to develop and or developed by incorporating the features outlined is an express admission by the plaintiff that its intention was to knowingly develop a software that is in contravention of Article 31 (d) of the Constitution of Kenya, 2010 as well as the principles data protection as enshrined and espoused in the Data Protection Act No. 24 Of 2019,” President Ruto’s aides counter.
“Such an agreement or contract to develop such a software that is in contravention of the Constitution as well as the principles of data protection, as enshrined in the Data Protection Act is an illegality and cannot be sustained under any law.
Such a contract is illegal, void, voidable and unconscionable,” they argue in the response dated January 31 through senior state counsel Bonn Bett.
Mr Koskei, Mr Kiptoo and the AG have asked the court not to give audience to Ms Wachuka having admitted to undertaking an assignment that was in breach of the constitution.
“The plaintiff has expressly admitted perpetuating an illegality by proposing to develop and or by developing a system that is utter contravention of the Constitution of Kenya, hence cannot enjoy any protection of any manner by any court of law,” the three say.
In court documents, Ms Wachuka complained that she was contracted by State House officials to develop the spying software that was also capable of swaying public opinion in favour of the government and managing the social media pages of the president and his deputy.
Ms Wachuka, who identifies herself in court papers as an international data scientist and software engineer “with disruptive and innovative technology expertise”, said she was seeking help from the court after the government breached the contract and after she had been forced to compensate a firm she had outsourced for the job.
“Any contract for delivery of service or goods to a state organ must be done in compliance with Article 227 of the Constitution of Kenya, 2010, which prescribes and gives effect to the Public Procurement and Asset Disposal.
"Any procurement thereof by a state organ, for it to be considered legal and compliant with the laws of Kenya, must be done in accordance with the Public Procurement and Asset Disposal No. 33 of 2015. The plaintiffs have failed to show any compliance with the procurement laws of Kenya,” the State officers counter.
The high-ranking government officials say they have never met Ms Wachuka as she alleges and deny knowledge of meetings to plan the project as she has claimed in court papers.
They deny meeting Ms Wachuka at Moxxies restaurant in Kilimani where she alleges the project was discussed and also say they did not instruct Mr Ng’eno to attend any meetings with Ms Wachuka.
“The 1st to 3rd defendants (Kiptoo, Koskei and AG) further aver that that at no time did they instruct any person, including the 5th defendant (Ng’eno) to attend any meeting with the plaintiff in the capacity of an agent, representative or a proxy in whichever capacity,” the three say.
Ms Wachuka has alleged that on November 7, 2023, she met Mr Ng’eno at Moxxies restaurant in Kilimani for the first time.
She has claimed that Mr Ng’eno had informed her that the president had tasked him “to source for technological solutions to guarantee consistency and clarity in government communications,” among other things.
President William Ruto.
Photo credit: Sila Kiplagat | Nation Media Group
Mr Ng’eno is said to have requested Ms Wachuka “as a matter of urgency” to develop “confidential software” to manage strategic communications toward the 2027 William Ruto presidential re-election bid.
“The software would have the capacity to spy on targets,” Ms Wachuka has alleged in court papers.
Mr Saini, too, has disputed all the claims by Ms Wachuka in a 15-point rebuttal.
The businessman, whom Ms Wachuka claims was introduced as the project’s financier, urged the court to dismiss the case as it was lacking in merit and was based on falsehoods aimed at tarnishing his name.
“The 4th defendant (Saini) is a stranger to the contents,” his lawyers said in the response to the suit.
Ms Wachuka has alleged that on November 22, 2023, she attended a follow up meeting with Mr Ng’eno and Mr Saini at an office at Arch Place on Nyangumi Road.
She has claimed it is during this meeting that she was first introduced to Mr Saini who was identified as the man who would oversee the project and handle the finances.
Ms Wachuka has alleged that she had been informed that owing to the confidentiality of the project, only Mr Saini would handle the finances and oversee the implementation.
Court papers reveal that this legal dispute first began in New York, where Wachuka on May 13, 2024, had to pay $950,430 (Sh123 million) as compensation for breach of contract to a firm she had subcontracted for the collapsed Kenyan project.
Ms Wachuka has claimed that based on Mr Ngeno’s assurances that the proposal for the Kenyan project had been accepted and would be funded, she had entered into a contract with the US partner, Tesxo, to execute the project— codenamed Numera 2023.
Under the contract of December 23, 2023, Ms Wachuka on boarded Tesxo for $460,000 (Sh60 million).
There was $12,000 (Sh1.5 million) per week penalty for delayed payments to assist with the project.
Under the agreement, 60 percent of the fee - $276,000 (Sh36 million) - was due as a down payment on January 31, 2024, while 40 percent- $184,000 (Sh24 million) - was due on delivery of the software on February 28, 2024.
On January 3, 2024, Ms Wachuka had to pay the first installment of the penalty— Sh1.5 million— for the delayed payments to the sub-contractors. On February 10, 2024, Tesxo issued Ms Wachuka with a 12-day ultimatum to pay what was owed to them failure to which she was to be prosecuted. Eventually, Ms Wachuka had to pay Sh122 million to Tesxo.
She said she lost everything that she had worked for while in the US including her house, to settle the hefty fines imposed on her.
On July 24, 2024, Ms Wachuka claimed she met Mr Ng’eno at a parking lot in Kilimani where again he promised that all the cash that was promised for the job would be paid. Ms Wachuka said she was never paid and hence resorted to court action.
