Mudavadi probed over cemetery saga

By Standard Team

The Kenya Anti-Corruption Commission is fighting perception it has been chasing small fish, but it now has Deputy Prime Minister Musalia Mudavadi on its to-probe-list.

It is the highest KACC has got in the party hierarchy, given Mudavadi is the Prime Minister’s second in command in Orange Party alongside Agriculture Minister William Ruto. Ruto is also grappling with corruption claims.

Apart from the 12 senior Local Government Ministry officials, including Permanent Secretary Sammy Kirui, and former Nairobi Town Clerk John Gakuo, also in a list of those under probe in the Sh283m inflated cemetery land purchase is Mayor Godfrey Majiwa.

"Out of the Sh283,200,000 there was a clear understanding among the various players that only Sh110 million comprised the actual price, Sh120 million was set aside as benefit to public servants at the council, Treasury, and the Ministry of Local Government that was to handled by Newton Osiemo and his brother Davies Osiemo," said the report.

Mudavadi, KACC acting director John Mutonyi, said, was under investigation because a lawyer alleged to have been at the centre of the inflation of purchase price for cemetery land, collected Sh59 million with the explanation it would be shared out among top ministry officials among them Mudavadi. But Mudavadi has denied doing business with Osiemo.

The investigation report released by KACC yesterday said the lawyer, Newton Osiemo, had gone underground. But also intriguing is the claim that could be used against Raila’s party, that Majiwa not only collected Sh11 million from the extra Sh120 million allegedly piled on the Sh110 million land purchase price on paper, but introduced Osiemo to the tender committee involved as Musalia’s business partner.

But what is even more shocking is the conspiracy KACC claimed to have unearthed, which includes forgery of official documents, boardroom conspiracies, contraction of lawyers to ensure the ‘extra’ money would reach the conspirators as agreed, without anyone being double-crossed, and falsification of valuation reports to pass a swathe of land unsuitable for human graves as superb.

Tuesday, Mudavadi requested KACC to go and obtain a statement from him in line with his previous written requests. In a statement Musalia said he was deeply distressed at the false and most scandalous information, which is being purveyed to the public regarding his alleged role in the procurement of the cemetery plot by the City Council.

"It is unfair, in breach of rules of natural justice and irresponsible for damaging allegations about me to be released to the public, without even giving me the opportunity to respond to them, said Mudavadi.

Majiwa allegedly introduced a lawyer, Osiemo, who transacted the deals to Ms Mary Nge’the as a business associate of Mudavadi. Ng’ethe who chaired the tender committee at City Hall is among those suspended this week by President Kibaki with a rider the monies lost must be recovered.

KACC says it received testimony Osiemo was expected to take care of the interest of the Deputy Prime Minister and those of PS Kirui. "Ms Nge’the related the vicious haggling over the actual figures to be distributed in relation to Sh120 million that was to be shared out in the deal," says the report. The 16-page document signed by Mutonyi, however, says that the lawyer who is said to have been the link person between Mudavadi and Kirui is yet to be interviewed, as he is reportedly underground.

"We are hopeful to examine Kojwando Advocates who is alleged to have received Sh10 million on behalf of Mayor Majiwa," said Mutonyi.

The KACC boss, however, went ahead to state there was credible evidence the three were involved in the conspiracy.

The report copied to Raila and Secretary to the Cabinet and Head of Public Service Francis Muthaura gave a detailed flow chart on how the conspiracy to defraud taxpayer was allegedly plotted.

The dramatic forgery was hatched at a boardroom at Nairobi City Council where a Tender committee plotted to buy 120 acres offered by M/S Naem Rech Ltd at Sh283, 200,000, that is at Sh2.4 million an acre, when the owner had offered it at Sh400,000 an acre.

The money paid out was more than double the price agreed with the owner of the farm Henry Musyoki Kilonzi. He was paid Sh110 million. Kilonzi has since denied ever selling land to the City Council of Nairobi and insisting he sold the land to an Israeli company Naen Rech Ktd for Sh110 million and executed a sale agreement for the same. It emerged that Kilonzi’s signature on the sale agreement with the council was forged, meaning he sold the land to a second party who was aware of City Hall’s search for a replacement of Langata Cemetery, which is full, and was buying it just for ‘hawking’ to NCC.

Upon execution of the sale agreement, the Ministry of Local Government released the money in two installments to the Town Clerk for onward transmission to the council lawyer Edward Omotii of Omotii and Omotii Company Advocates.

The first cheque of Sh175 million was released on June 30, 2008. Another for Sh108 million was released in January, last year. "Out of the Sh283, 200,000 released by the Government, only Sh110 million was paid to the vendor. There was a clear conspiracy to defraud the Government of Sh173, 200,000 by various advocates, senior officials at the Ministry of Local Government, Treasury, NCC and other intermediaries," reports Mutonyi.

Three lawyers

To execute the deal, Omotii issued a cheque of Sh281, 300,000 in favour of an escrow account at the Bank of Africa operated by three lawyers Odero Osiemo, PC Onduso and Alphonce Mutinda. This money would lie in the account to be shared out later when the deal went through.

On November 8, before the award of the tender, the three lawyers agreed that David Osiemo, would take care of the interests of his brother Newton Osiemo, officers at NCC, Ministry of Local Government and Treasury.

Lawyer Alphonse Mutinda was to take care of the interests of Henry Kilonzi who was the vendor and PC Onduso would take charge of the interests of Maina Chege, the owner of Naen Rech Ltd and agent of Mr Kilonzi.

About Sh50 million was set aside for distribution to broker Maina Chege, the surveyors, Cepahas Mwaura and lawyers Alphonce Mutinda and PC Onduso.

For his work, the Nairobi City Council lawyer Edward Omotii received Sh13 million over and above his legal fees of Sh2 million.

It was established that Dr Daniel Mulwa Nguku, the Medical Officer of Health at the City Council received Sh2 million to buy material for developing a plot in Mwingi town.

His wife Janet Kavula Mulwa received Sh4 million, through PJ Kakad and Company Advocates, which applied to purchase a plot at Valley View Estate in Mlolongo, and further received a cheque of Sh1,000,000, which was deposited in Mwalimu Sacco.

The commission traced Sh20 million of the Sh117 million to Osiemo and Company Advocates, which was applied to buy 2.71 acres of land in Karen, reported KACC.

It was also confirmed that Sh10 million paid to Peterson Gichana was later en-cashed and paid to Boniface Misera, a senior procurement officer in the Ministry of Local Government.

From evidence KACC received from the Ministry of Local Government, there was pressure for the council to fast track the acquisition of the cemetery.

The recommendation was disregarded protest by the director of Planning, Patrick Odongo and the director in-charge of Forward Planning Section John Koyier Barreh.

"The two raised objections arguing the tender document was defective and insufficient and that the land was not suitable for cemetery use," said Mutonyi.

Despite the protest the tender was awarded late November 2008 to M/S Naen Rech Ltd to purchase the 120 acres registered in the name Henry Musyoki Kilonzi and the tender team ignored the fact the land was unsuitable for burial purposes.

The adjudication and award of the tender was based on a forged valuation report purportedly done by Anthony Matenga Itui, a Deputy Commissioner of Lands in charge of valuations, the report says.

Mudavadi argued the only motive for such conduct must be a political scheme to besmirch his character in the eyes of the public who do not have any real facts regarding the matter.