Public officer to forfeit Sh41 million over corruption

Supreme Court judges have allowed the Ethics and Anti-Corruption Commission (EACC) to seize Sh41 million from a top former public official who amassed vast wealth from unexplained sources despite his modest official salary.

The development comes after the court struck out an appeal by Stanley Mombo Amuti, who served as finance manager at the National Water Conservation and Pipeline Corporation.

A five judge-Bench, comprising Chief Justice David Maraga, his deputy Philomena Mwilu, and justices Smokin Wanjala, Mohammed Ibramin and Isaac Lenaola found that the court lacked jurisdiction to hear Mr Amuti’s appeal.

In a ruling that marked the end of a 12-year-old legal dispute, the judges found that the appeal did not involve interpretation and application of the Constitution, hence the powers of the Supreme Court could not be invoked.

In the appeal, Mr Amuti was challenging a judgment dated November 23, 2017 by Justice Lydia Achode, which had allowed the anti-graft body to seize the unexplained wealth, believed to be proceeds of corruption.

He argued that the judge had misdirected herself as to the law provided under Article 40 and 50 of the Constitution and Section 55 of the Anti-Corruption and Economic Crimes Act, 2003 (ACECA) as to the threshold on forfeiture of his property.

However, the Supreme Court noted that in crafting his appeal, Mr Amuti had focused more on the “threshold of forfeiture of property” than on the specific constitutional questions revolving around interpretation or application of the Constitution.

“In the entire analysis of the evidence before her and in applying the law to that evidence, nowhere did Justice Achode make any reference to the Constitution nor did she even attempt to interpret or apply Sections 26 and 55 – of ACECA – in the context of their constitutionality or otherwise,” ruled the Bench while allowing a preliminary objection filed by the EACC against the appeal.

Mr Amuti’s monthly salary was Sh180,000, but he accumulated wealth whose value was disproportionate to his known sources of income, with the court holding that he had an obligation to explain how he had acquired the money.

The period within which he is said to have been involved in corruption and acquisition of unexplained assets was between September 2007 to June 2008.

The dispute over his wealth started after he indicated in his wealth declaration forms that the salary was his only source of income. However, anti-corruption detectives noted that he had various assets located in different parts of the country, all worth millions of shillings.

Mr Amuti was a long-serving civil servant, qualified as a certified public accountant, and had worked in various ministries and departments for over 25 years.

EACC sought an explanation on the properties in his possession, including two houses and a plot in Umoja Innercore Estate in Nairobi, three plots in Ngong, four motor vehicles, money in two local banks accounts and one in London and Sh4.3 million in cash that was found in his house.

Among the questionable money in Mr Amuti’s bank account that the State will seize is Sh10.9 million that he received from Jenifer Evelyn Mwaka and Antony Ng’ang’a. On these deposits, the court noted that the two (Jennifer and Anthony) were merchants who had supplied goods and services to the corporation for which Mr Amuti worked as finance manager.

Mr Amuti said he was unaware of those facts, but that even if it were true it would not preclude him from doing his own private business with the suppliers.

“Such a relationship is obviously one that would give rise to conflict of interest where persons with whom Mr Amuti was carrying on private business, were also the ones being awarded the corporation tenders and he had not disclosed such interest,” said Justice Achode.

Evidence showed that the two persons had received several Local Purchase Orders (LPOs) from the company.

Mr Enoch Otiko, a forensic investigator at the anti-graft commission, stated that the fact that some of the National Water and Pipeline Corporation’s merchants were depositing money into Mr Amuti’s accounts meant that he was receiving kickbacks.

The State will also seize Sh15.5 million that the official said was professional fees paid to him by a Sudanese national for accounting services.

There was, however, no evidence to back his statement as he did not provide the name or company of the “Sudanese national” that he served or the period for which services were provided among other details.

It was not clear why he chose to bank the said fees in tranches of Sh100,000 through ATM deposits over a period of days. It was also doubtful that the “Sudanese national” would have paid such a large amount of fees in cash and in such amounts over a number of days instead of making one bank transfer or a few large transfers.

The State will also recover Sh9.5 million that Mr Amuti said had been advanced to him by one Samuel Gitonga through an agreement dated January 18, 2008.

The said Gitonga did not testify, nor did Mr Amuti provide any documentary evidence to support his allegation. The court was not told of any difficulty in securing Mr Gitonga’s attendance in court to testify on behalf of the defendant.

Another amount going to the State is Sh4,308,000 in cash that was seized from the defendant’s house during a raid by detectives and a further Sh1 million said to be funds for a community project.

Mr Amuti had claimed that the Sh1 million had been collected through a fundraising for purposes of electricity installation on behalf of his community back in his village.

“One would expect that there would be some sort of committee to oversee such a noble idea or that even the area chief or sub-chief would lend credence to such assertion. I note, however, that not a single witness testified in support of the said project,” said Justice Achode.

Using the definition in Section 2 ACECA Act, the court considered only the property acquired within the period in question (September 2007 to June 2008).