Former Central Bank of Kenya boss who has been handed another reprieve after the court of appeal stop his arrested or prosecuted over alleged irregularities in the award of a 1.2 billion shillings security tender to a UK-owned firm.
BY SAM ALFAN.
Former Central Bank of Kenya boss cannot be arrested or prosecuted over alleged irregularities in the award of a 1.2 billion shillings security tender to a UK-owned firm.
This is after the Court of Appeal handed him another reprieve after it issued conservatory orders restraining Ethics and Anti-Corruption Commission against arresting him and arraigning him at the trial court.
Professor Njuguna Ndungu went to the court of appeal late last year to quash the orders that were made at the high court by justice George Odunga which would have seen him arrested when he was still in office.
The former Central Bank of Kenya boss professor Njuguna Ndungu is a man with nine lives.
Ndungu came close to being arrested and arraigned in court last year after Justice George Odunga delivered verdict that stated the former governor should be taken to the trial court.
He successfully obtained stay orders in December last year pending determination of his court of appeal case.
Justice Patrick Kiage has issued conservatory orders meaning that the Ndungu will not be arrested by the Ethics and Anti-Corruption Commission.
While delivering the judgment today the appellant judge said that it was proper for the professor to seek conservatory and that the former CBK boss has a right to be heard at the higher court.
His lawyer Donald Kipkorir had told the judges that the High Court erred in allowing his prosecution over non-existent crimes.
The CBK chief is seeking to quash a case accusing him of office abuse through his involvement in issuing a tender to install security software at the bank to UK firm Horse Bridge.
has denied involvement in the tender process saying the deal was awarded by an authorized body. The governor is also under the spotlight over inflation of the tender price from Sh800 million to Sh1.2 billion.
Central Bank of Kenya Governor Professor Njunguna Ndungu was handed a lifeline last year by the appellate court 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.
CBK governor tenure expired this month breaked the jinx that has followed most of his predecessors who were controversially hounded out of office pre-term.
This was 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.
His lawyer Donald Kpkorir has fought for the governor endlessly until he ensued he has retired peacefully from the helm he has been serving for last seven years.