Central Bank of Kenya Governor Professor Njunguna Ndung’u.
BY SAM ALFAN.
Central Bank of Kenya Governor Professor Njunguna Ndungu has been handed a lifeline by the appellate after the three judge bench extended conservatory orders restraining his arrest and possible prosecution.
The CBK boss through his lawyer Donald Kipkorir moved to the appellate court after the high court gave a green light for his arrest.
The conservatory orders means that the Governor will continue to be at the helm until March 6th 2015 when the case will be decided.
CBK governor whose tenure expires in March 2015 is likely to break the jinx that has followed most of his predecessors who were controversially hounded out of office pre-term.
This is after the three judge bench of the appellate court comprising of presiding judge John Mwera,Patrick Kiage and Steve Gatemo granted conservatory orders running until the 6th of March 2015 restraining his arrest and prosecution.
Through His lawyer Donald Kpkorir,Ndungu told the appellate court that he is being hunted for doing no wrong.
Ethics and Anti-Corruption Authority and office of the DPP are alleging that the Governor conferred a benefit to Horse-Bridge Company Limited during a 1.2 billion security tender process where they claim the Government lost 400 million shillings.
However the Governor says that the tender was given to the lowest of the lowest bidders having by passed another bidder who had presented 1.6 billion shillings.
The court was told that there is a threat that the Governor might be prosecuted and charged wrongfully against his fundamental rights and the law only to end up like his predecessor Andrew Mulei who faced the same predicament and acquitted later on.
The professor also argued that DPP and EACC have criminalized the tendering process while the same was given a clean bill of health by Public Procurement and Administrative Review Board and that the allegations against the process were filed out of the 30 day period in which the appeal was supposed to have been made.
However the Governor who was appointed in 2007 is scheduled to leave office in March 2015.
Reports from other quarters suggest that unscrupulous business-men. Political wheeler dealers and power brokers are behind the scheme to hound the professor out of office.
It is claimed that the bone of contention is a 25 billion tender for printing new currency notes.
That some foreign companies are hell-bent on to have the budgetary allocations for the tender increased from 25-34.5 billion shillings.
The constitutional requirement is that the new notes must be printed before August 2015.
The Central Bank of Kenya Governor Njuguna Ndung’u appealed against the decision of the High court in Nairobi that gave a nod for his prosecution over an alleged irregular award of a Sh1.2 billion security tender.
Judge George Odunga in his judicial review judgment, allowed the process of prosecuting Governor Njuguna to kick off, a move that may put his distinguished career into question.
However, through his lawyers, the CBK boss Tuesday faulted the judgment and wants the entire judgment set aside. They said the decision was not backed by an explanation.
The CBK wants the appeal court to issue him orders against his imminent arrest to face charges of fraud.
Justice Odunga in his ruling said: “The trial court is better placed to decide efficiency of the case and the CBK governor stands a better chance to defend himself appropriately.”
The beleaguered Governors’ lawyer said; the high court judge did not follow the precedent of other judgments set out in similar cases.
“The judgment is narrow, simplistic, opportunistic, and oppressive. The judgment fails to expand the frontiers of constitutionalism as set out in article 20 of the constitution.” said lawyer Kipkor.
In the suit before the appellate court, the CBK boss has lined up the Ethics and anti-corruption Commission (EACC), Director of prosecution and the Inspector General of police as the key respondents.
The appeal also states that the high court decision to allow the Governor to be charged is based on unfounded legal and factual substratum.
“The judge erred in law by allowing the appellant to be prosecuted on a procurement process that was complete pursuant to the public procurement administrative review board rulings,” reads part of the appeal.
For Professor Njuguna, judge Odunga criminalized a lawful process. His lawyers also said that the respondents were not supposed to give evidence from the bar.
“In a judicial review court, only matters of law should be presented,” explained his lawyers.
The lawyer also wants the appeal court to find that the law was not followed when high court judge faulted the procurement process at the same time found it lawful.
“The judgment was generalized when the appellant sought specific reliefs,” the appeal reads.
Judge Odunga in his decision found out that Prof Ndung’u had discarded the recommendations of internal and external legal teams in addition to the errors detected by his deputy over the award to the UK-based IT Company.
The appellate judges led by presiding judge John Mwera will deliver their ruling on 6 March 2015.