Former Treasury Cabinet Secretary Henry Rotich has suffered a blow in his bid to have corruption charges leveled against him over the loss of Sh55.8 billion in the Kimwarer and Arror dams scandal quashed.
His petition was dismissed by High Court Judge Esther Maina who was said that the former CS failed to prove that Director of Public Prosecutions Noordin Haji had a personal vendetta while charging him.
Judge Maina further explained that it is the role of the magistrate to delve into the merits of the charges he was facing and not Rotich himself.
The former CS argued that the charges which relate to the stalled construction of the two dams in Elgeyo Marakwet County were motivated by Haji’s ulterior motives and that’s why they have failed to reach conviction.
“It is evident that the applicant herein is drawing this court to determine his innocence or otherwise, which is not the province of this court and accordingly, his petition must fail,” Justice Maina said.
“It is my finding that the issues he has raised ought to be raised in the trial court. The judge stated that Rotich has no demonstrated to the court that his prosecution is motivated by ulterior motives.
Mr Rotich had moved to the High Court to challenge the charges brought against him arguing that his role as the Treasury CS was to review and negotiate the proposed financing proposal and if acceptable, proceed and execute the loan facilities agreement in accordance with Public Finance Management (PFM) Act.
He was question the move by DPP Haji not to charge former Environment and Regional Development Authorities CS Judi Wakhungu and experts from the ministry. Rotich claimed that he signed the agreements at the tail end as part of his statutory roles.
He further claimed that he was not the accounting officer and did not have a superior authority over Kerio Valley Development Authority (KVDA,) the procuring entity which played key roles in the procurement process.
Rotich claims that the State criminalised his role in the Arror and Kimwarer dams scandal but turned a blind eye on other multi-billion projects including the Standard Gauge Railway (SGR) which was subjected to a similar process.
Through his lawyer Paul Ng’arua, Mr Rotich trashed the prosecution misunderstanding what constitutes a government-to-government loan and his role as the Cabinet Secretary under the PFM Act.
“He was not involved in the contracting process. And when he entered into a financing contract, he did so following the PFM Act. There is misinterpretation by the DPP as to what constitutes the government-to-government loan,” Ng’arua said.
The DPP has is accusing Rotich of single-sourcing the insurance policy known as SACE (an Italian export credit agency offering insurance) valued at Sh11 billion, an amount that was allegedly inflated by more than 400%.
Court documents show that Cooperativa Muratori & Cementisi CMC Ravenna- Societa Cooperativa was the bidder in the deal.
But DPP further argues that the insurance policy should have been subjected to competitive bidding but the agreements, loans and drawdowns and payments were made prematurely.
Haji said Mr Rotich acted against the law and breached his duties by sourcing substantial funds for a project that was already flawed.
Though the former CS admitted signing agreements with BNP Paribas Forties S.A./N.V; Itesa Sanpaolo S.P.A.; Unicredit S.P.A. and Unicredit Bank AG in April 2017, to finance the construction of the two dams, he maintained that Haji did not understand the law and the procedures of entering into a loan agreement and charged him on the wrong premise that they were improper and constituted a loss of public funds.
Rotich is struggling to get off the hook after DPPdropped charges against former Treasury Principal Secretary Kamau Thugge and Susan Koech. Haji wants to use Thugge and Koech as witnesses in Mr Rotich case.
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