Kenya Ports Authority (KPA) Managing Director Daniel Manduku will remain a free man for two weeks after the High Court in Mombasa granted him free bond stopping his detention by police over corruption allegations.
Dr. Manduku had filed a petition in court seeking to stop the Director of Criminal Investigations (DCI) and Director of Public Prosecution (DPP) and Inspector General (IG) of police from arresting and prosecuting him over a Sh2.7 billion alleged fraud in various tender projects.
Justice Eric Ogola issued Dr. Manduku a 14 day free bond pending his ruling on whether to stop the DCI from arresting and prosecuting the port manager in the ongoing investigations over fraudulent tenders for various projects at the port.
Justice Ogola said that he would not issue any interim orders stopping the arrest and prosecution of Manduku until he determines all the submissions made by DPP, Attorney General and his counsel Siaya Senator James Orengo.
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“I have considered the application dated November 27, 2019 and submission by both parties. I am not able to determine and issue any interim orders. The petitioner is seeking to be released on a free bond should he be arrested,” said Justice Ogolla.
In the suit, Manduku has accused the DCI of conducting malicious, illegal, discriminatory and selective investigations against him and a few port managers over the execution of projects authorized by the cabinet and multi-agency teams.
He also wants the DCI and DPP stopped from issuing press statements about these investigations accusing them of waging a hostile media campaign against him as if he is already guilty.
13 companies were contracted by KPA to each construct 1380 barriers at a cost of Sh109, 305, 739 per each company.
Among the companies contracted to supply the barriers include; Makk Hard Agencies, Gate Way Inventions, Dhanjal Brothers Limited, Selwa K Limited, Absel and Son Ent, YUAF Agencies, Outback Invest. Ltd, South Shine International Ltd, EZCO Ltd, Starquid Ltd, Out Back Investment Ltd and Lee Construction Ltd,
According to documents filed in court, the DCI has pressed 30 possible charges against Manduku and two others in relation to the procurement of various port projects that are underway in Kisumu, Mombasa and Nairobi.
Besides Manduku, the DCI has recommended prosecution of Anthony Muhanji and Juma Chigulu, Mathews Ondiek Amuti, William Kimabwai Tenay, Aza Nassir Dzengo, Ali Mwinjaka, Tom Onyango Okeyo, Joseph Safarry Kingwagu.
Among the charges that they face include conspiracy to defraud Sh1.4 billion through irregular issuance of purchase orders and declaration of bills of quantities for the manufacture of 17, 940 pieces of concrete barriers, abuse of office and engaging in procurement without an approved budget.
It is said that Manduku between on March 27 and August 23, 2019, KPA headquarters within Mombasa County failed to ensure that there was a procurement plan for manufacture of 17, 940 pieces of concrete barrier with a total concrete sum of Sh1, 420, 730, 727.
Manduku is said to have influenced the Head of Procurement and Suppliers Department Antony Kawamah Nyamancha to award works for the manufacture of 17, 940 pieces of concrete barriers to his preferred contractors.
Manduku lawyers’ James Orengo and James Havi said that their client has been the target of unfair, un-procedural and flawed investigations for alleged procurement-related offences and that the DIC, IG and DPP have recommended his prosecution based on impugned investigations.
Orengo said the works were executed by KPA in collaboration with a host of other public ministries, agencies, bodies and entities including the Ministry of National Treasury and Planning, the Ministry of Environment and Forestry and Public Works Department.
Orengo said the work was done in obedience to exigent executive and ministerial orders and in accordance with applicable laws.
“It is only KPA and a few of their staff members including Manduku that have been singled out for investigations by the DPP and DCI leaving out other government institutions involved in the procurement, planning and execution of the said works,” said Orengo.
He said that the DPP and DCI had assumed the authority and mandate of the Ethics and Anti-Corruption Commission (EACC) as conferred on it by the Anti-Corruption and Economic Crimes Act 2003 by purporting to investigate corruption-related and economic crimes.
Orengo said the agencies were in breach of the national values and principles of governance for failing to adhere to the rule of law and to be accountable and transparent in the investigations and intended prosecution of Manduku.
Orengo told the court that DPP, DCI and IG have subjected him to administrative action that is unfair, inefficient and unlawful through non-disclosure of all relevant facts and denying Manduku the right to present his case.
“The DPP and DCI have mounted a scurrilous media campaign against Manduku, publicizing the investigations against him and the recommendations to charge him thus denying him the right to be presumed innocent until the contrary is proved,” said Orengo.
However senior prosecutor Alexander Muteti, said that they were yet to decide whether to proceed with the proposed charges or close the file.
Muteti said Manduku’s application was misconceived and prematurely presented before the court and that he was asking the court to usurp the power of the DPP.
“Petitioner seeks to stop the DPP from exercising his authority as enshrined in the constitution. The DCI did investigations and presented the file to the DPP as he ought to under the constitution,” said Muteti.
He said that National Police Service NPS should not be under direction or control of any person or authority in discharging their mandate.
“The proposed charges remain mere proposals and the decision to charge will be made by the ODPP. The high court cannot be asked to make a decision when there is none. The DPP has not made any decision to charge the petitioner,” said Muteti.
He said the application by Manduku is set to render functions of the DPP impossible.
Muteti said that if the court allows the application, it will open Pandora box where any other suspect will only appear before court and say they are being threatened by the DCI and DPP.
“We might as well close the two offices if this application is granted because it will open a Pandora box where every suspect will rush to court to stop investigations and prosecution,” said Muteti.
