Former Kiambu Governor Ferdinand Waititu and his wife Susan Wangari are staring at a lengthy jail term of up to 10 years for receiving kickbacks worth millions of shillings from a contractor for a Sh588 million road construction tender.
According to Section 48 of the Anti-Corruption and Economic Crimes Act, a person convicted for the offences is liable to a fine not exceeding Sh1 million, or to imprisonment for a term not exceeding 10 years, or to both.
The Act further provides an additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss. The mandatory fine, according to the Act, shall be equal to two times the amount of the benefit or loss.
Mr Waititu and his wife were convicted alongside another business couple, Charles Mbuthia Chege and Beth Wangechi and former Kiambu County Roads Chief Officer Engineer Luka Mwangi Wahinya
The ex-governor and his wife told the court that they are remorseful and sorry as they pleaded for a non-custodial sentence saying they are parents and have dependents.
Mr Chege and his wife Beth were convicted of two offences of engaging in a fraudulent procurement and fraudulent acquisition of public property, offences that attract a fine not exceeding Sh4 million or imprisonment for a term not exceeding ten years or both.
The Act further provides that if the person is a body corporate, the fine is a maximum of Sh10 million. Mr Chege and his wife were convicted alongside their trading company Testimony Enterprises Limited.
Engineer Mwangi was convicted of abuse of office, an offence that attracts ten years in jail or a Sh1 million fine.
The offences arose from a road construction tender issued to Testimony Enterprises Ltd by the county government in February 2018. The company is owned by Mr Chege and Ms Wangechi.
The tender worth Sh588,198,328 was for the upgrading of various gravel roads to Bitumen surface in Thika, Limuru, Gatundu North, Juja and Ruiru sub-counties.
In the judgment delivered by Chief Magistrate Thomas Nzioki, the court said the former governor failed to honour the oath of office and to safeguard the public funds.
"Having painstakingly evaluated the evidence presented by the parties and on careful consideration of the submissions, I am convinced beyond any reasonable doubt that the Prosecution has proved the charges against the accused persons," said the magistrate.
The court found that Mr Waititu acquired a private interest in the contract by receiving Sh25.6 million from Testimony Enterprises. The money was channelled through to him personally by the company's director Charles Chege. It was wired to his companies Saika Two Estate Developers, Bienvenue Delta Hotel Ltd and Lake Naivasha Resort.
The magistrate dismissed the defence by Mr Waititu and his wife that the money received from Testimony Enterprises was payments for services rendered such as hotel conference, accommodation, meals and supply of petroleum. Magistrate Nzioki said the defence was self-incriminating.
He noted that the defence by the governor, his wife and Mr Chege to explain the reason for the monies received by the entities, Saika Two Estate Developers Limited , Bienvenue Delta Hotel Limited and Lake Naivasha Resort Limited lacked credibility.
"Their defence is self-incriminating and bears admissions that Bienvenue Delta Hotel , a business name owned by the governor and his wife was directly trading with Testimony Enterprises Limited by supplying oil, and petroleum products and offering conference and catering services," said the magistrate.
He continued, "the defences raised by Mr Waititu, his wife and Mr Chege fail to account for the cheques and funds transfer disbursements made by Testimony Enterprises Limited".
"In my view, these defences, although conflicting, contain unequivocal admission of business dealings between Testimony Enterprises Limited, its director on one part and Mr Waititu's entity Saika Two Estate Developers.
In their mitigation, the accused persons asked for non-custodial and rehabilitative sentences while the Prosecution pushed for heavy punishment to serve as a deterrent to corruption offences.
“The first and second accused persons together with the fourth and fifth are couples with children and dependents reliant on their support. They urge the court to consider non-custodial options such as probation or fines. There are many vulnerable people who depend on them. Imposing harsh custodial sentences would not only ruin the accused but also affect their families, who would suffer irreparable harm,” said the defence lawyers.
“If given the opportunity to walk out of these gates free, they have a word to this court that what transpired leading to these charges will never happen. We are sorry and ask for forgiveness from God and the court and also implore on the court to raise mercy and give them a second chance to life. They are on their knees,” the lawyers added.
On the other hand, the Prosecution led by Ms Faith Mwila asked for a harsh sentence terming the offences as serious.
“We are calling for a stern sentence to serve as a deterrent. Corruption is a cancer that is suffocating the economic progress of our country. It undermines trust in governance and stifles growth. The gravity of the offences, including the massive financial losses to the county, must be reflected in the punishment,” said Prosecutor Mwila.
In the judgment, the magistrate detailed how the road project contract was procured fraudulently and awarded to Testimony Enterprises Ltd, who is an acquaintance of Mr Waititu and his wife Susan.
"Testimony Enterprises Limited won the tender by manipulation and procurement fraud perpetrated by Eng. Luka Mwangi Wahinya (former Roads Chief Officer) and the Tender Evaluation Committee. The inclusion of new criteria during the tender evaluation, serialization and form of tender gave Testimony Enterprises Limited undue advantage against the other four bidders," he said.
He observed that Eng. Mwangi manipulated the process of procurement contrary to section 74(1)(i) of the Public Procurement and Asset Disposal Act, 2015 by omitting serialization and form of tender in the bidding process.
"I have no doubt that; the Prosecution has established that Testimony Enterprises Limited won the tender in question by deceit and procurement fraud with the aid of Eng. Luka Mwangi and the Tender Evaluation Committee. In the circumstances, Eng. Luka Mwangi and Mr Charles Chege joined the rank of the first two architects of the corruption scheme which is the subject of the present case," said Magistrate Nzioki.
The County Chief officer was convicted for abuse of abuse as he was "at the centre of the flawed procurement process leading to the award of the road project tender to an unqualified form, Testimony Enterprises".
He declared the tender as illegal, null and void stating that it was won fraudulently as Mr Chege used forged academic credentials showing that his company had skilled personnel to undertake the contract.
The court ruled that Testimony won the tender based on falsified documents and fake partnership agreements with a Chinese firm, China Wu Yi Company Limited. This is after Mr Chege, director of Testimony admitted to submitting the forged documents to secure the contract during his defence
The Prosecution informed the court Mr Chege had forged documents from the University of Nairobi and Jomo Kenyatta University of Agriculture and Technology.
The court added that Mr Chege falsified documents showing his company had previously been subcontracted by a Chinese construction firm to undertake a similar contract. He did this proof that Testimony Enterprises had the capacity to perform the contract.
However, the magistrate found that based on evidence adduced by the Prosecution Testimony Enterprises lacked the capacity to undertake the multi-million tender.
"By dint of the provisions of section 66 (1) as read with section 66 (3)(b) of the Public Procurement and Asset Disposal Act, 2015 the contract is voidable. It is trite law that a contract procured by fraud is illegal, null and void ab initio. This legal proposition is supported by the decision," said the magistrate.
Mr Waititu was convicted for offences of conflict of interest and three charges related to dealing with suspect property amounting to Sh25.6 million.
His wife was convicted for three charges involving dealing with suspect property while Eng. Mwangi was convicted of abuse of office. Mr Chege and his wife Beth were convicted of three charges related to engaging in fraudulent practice.
