The Court of Appeal has upheld a fine of Sh1.18 billion against a Nairobi businessman convicted of defrauding the Youth Enterprise Development Fund (YEDF) of Sh180 million through falsified contracts in 2015.
The court dismissed an appeal by businessman Mukuria Ngamau and his company, Quorandum Limited, thus affirming the conviction and sentencing Ngamau to pay a fine of Sh1.18 billion and compensation of Sh189 million to the YEDF.
This brings the total amount he must pay to Sh1.3 billion. Should he default, Ngamau will serve seven years in prison for unlawfully acquiring public funds and falsifying business documents.
This ruling brings to an end a legal battle that has spanned nearly a decade and exposed a scheme involving falsified contracts and unlawful payments.
But the parties may escalate the matter to the Supreme Court if any issues requiring interpretation of the Constitution arise.
The case stems from a 2016 prosecution where Ngamau and five others were charged with conspiracy to commit economic crimes, the unlawful acquisition of public property and forgery.
They were accused of orchestrating fraudulent payments totalling Sh180 million from YEDF’s bank account between 2014 and 2015 through fictitious consultancy contracts.
Mr Mukuria Ngamau, the Director of Quorandum Ltd, leaves the Anti-corruption Court in Milimani, Nairobi on September 30, 2021.
Photo credit: Dennis Onsongo | Nation Media Group
Initially, six individuals were charged, but two — including former YEDF Acting CEO Catherine Namuye and chairperson Bruce Odhiambo — died before trial.
Ngamau and Quorandum Limited remained accused of receiving Sh115.7 million and Sh64.6 million in separate transactions (totalling Sh180.3 million) under falsified contracts for ICT consultancy services on "ICT Strategy Design" and "Design of Specifications for an Enterprise Resource Planning (ERP)".
The prosecution called 32 witnesses, including YEDF officials and forensic experts, who testified that the contracts used to justify the payments were falsified and that no services were rendered to the State entity.
Joseph Alumasa, the ICT manager at YEDF, compared the disputed contracts with legitimate ones and found glaring discrepancies. Miriam Boit, the then-acting company secretary, disowned the documents, stating they had never been drafted by the Fund.
This was confirmed by Emmanuel Japheth Odero, the Manager Internal Audit and Valuation at the Fund.
Quondarum Ltd Managing Director Mukuria Ngamau when he appeared before the Public Investments Committee at Parliament Buildings in Nairobi on March 8, 2016. PHOTO | EVANS HABIL | NATION MEDIA GROUP
A forensic document examiner, Jacob Oduor, matched Ngamau's signature to the falsified contracts, while internal auditors traced the illicit payments to Quorandum Limited’s accounts.
Other witnesses, including the Fund's Head of Finance and bank officials, testified on how the money was transferred and that Ngamau personally pursued the payments, visiting Chase Bank to inquire about the funds. They described him as “literally chasing money in the bank” before the payments were processed.
In September 2021, the magistrate’s court convicted Ngamau and his company on all counts, imposing a seven-year jail term for conspiracy and unlawful acquisition of public funds, a Sh1.18 billion fine, and an order to compensate YEDF Sh189.3 million.
A breakdown of the fines shows he was sentenced to pay a mandatory fine of Sh925.6 million for the two offences of unlawful acquisition of Sh180.3 million public funds or serve seven years imprisonment. For the benefit received, the court imposed an additional mandatory fine of Sh258.6 million or a seven-year jail term. He was also ordered to repay YEDF Sh189.3 million for the loss suffered, bringing the total to Sh1.37 billion.
For forgery of contracts, he was sentenced to serve three years' imprisonment.
Ngamau appealed to the High Court, where, upon evaluating the record and the arguments, the court, in February 2023, acquitted him of conspiracy but upheld the remaining convictions.
Dissatisfied, he took the case to the Court of Appeal, arguing that his constitutional rights were violated, the charges were defective, and the prosecution relied on insufficient evidence.
However, a three-judge bench dismissed the appeal, stating that the evidence against Ngamau was overwhelming.
The judges ruled that his conviction was grounded on direct and corroborated evidence independent of the evidence against the deceased accused persons.
"The circumstances form a chain so complete that there is no escape from the conclusion that the appellant committed the crimes," the judges ruled, adding that the conviction "was in regard to his own actions and not the actions of others".
"The argument that improper reliance was placed on evidence concerning deceased persons to convict him or that unnecessary weight was placed on the evidence concerning the deceased accused to hold that he played a part in the offences lacks merit and must fail".
The judges ruled that the charges were clear and the evidence was overwhelming. They noted that Ngamau failed to prove he rendered any services justifying the payments. Although the prosecution had conceded that key elements of the offences related to forgery were not proven beyond doubt, the Court of Appeal disagreed with the State counsel.
"The courts below properly found that documents submitted were falsified to facilitate the payment, and they relied on evidence from bank officials, the Fund, and a forensic expert," said the judges.
The prosecutor had argued that without a witness who saw Ngamau put pen to paper, the presumption that he was the maker of the document did not arise.
