NYS scam suspects to face money laundering charges

NAIROBI, KENYA: Eleven suspects linked to the Sh 791 Million National Youth Service (NYS) scam have been dealt a major blow after the High Court ordered they be prosecuted with fresh charges of money laundering.

Justice Joseph Onguto while dismissing seven applications filed by the suspects said Director of Public Prosecutions Keriako Tobiko did not abuse his powers in preferring the money laundering charges as alleged by the 11 suspects.

"It is evident that knowledge or fact of presumed knowledge on the part of an accused person that the property he gets into an arrangement with is or forms part of proceeds of crime is an ingredient of the offence," Justice Onguto ruled.

Justice Onguto further said despite the fact that money laundering offences was new in the country as long as there is evidence it can be a stand-alone charge.

The 11 suspects set to be charged include businesswoman Josephine Kabura who is believed to be the architect behind the scam, businessman Ben Gethi, his mother Charity Wangui and city lawyer Patrick Onyango Ogola.

Others suspects are John Kago, Samuel Wachenje, Anthony Gethii Kihara, Benson Gachoka, Benson Gethi, John Hope Vandamme, Martin Gachara Wanjohi and Jedida Wangari.

They will also be prosecuted under the Proceeds of Crime and Anti-Money Laundering Act which formed the basis upon which properties worth millions of shillings were seized and their bank accounts frozen.

The suspects had filed multiple suits seeking to have 15 counts of money laundering preferred against them terminated. They argued that the allegations against them were unclear and irrelevant as they were receiving money in the ordinary course of business.

In December, last year through a gazette notice the Assets Recovery Agency (ARA) targeted two pieces of land in Muthaiga, a house in Rosslyn Estate, Nairobi, and Eden Times Restaurant located in Mercury Building along Moi Avenue and a Range Rover Vogue all valued about Sh 500 million.

Thereafter, High Court judge Mbogoli Msagha issued an order prohibiting the transfer or disposal of the property, adding to the long list of frozen funds and property associated with Mr Gethi.

The judge further ordered that the motor vehicles be seized and surrendered to the police for detention by the Directorate of Criminal Investigations (CID) until further orders are issued.

The ARA obtained other orders after it filed a fresh suit against some the suspects it suspected of purchasing a number of assets, including three Toyota Prado vehicles, a plot of land in Ruiru valued at Sh4 million and a maisonette in Nairobi's Kasarani Estate as part of a scheme to launder funds stolen from the NYS.

On Wednesday Justice Onguto said the powers of the DPP to prosecute and to decide when to prosecute are constitutional and should not be interfered with.

The judge disagreed with the suspects saying the DPP ought not to proof the money laundering charge before the suspects are formally arraigned in court.

"On whether the petitioners intended prosecution is justified, I find that the DPP's decision to prosecute the suspects has a factual basis which may only be faulted after trial," the judge said.

Justice Onguto said the particulars in the charge sheet are clear and the 11 suspects failed to convince the court as to how investigations were not properly conducted.

"The circumstances in this case in my view, clearly had a reasonable basis and a factual foundation to opt to prosecute the suspects on the offence of money laundering," the judge said.

The 11 suspects had argued that since the money alleged to have been stolen from the ministry of devolution was yet to be proved, the DPP was therefore not qualified to claim the said money was from proceeds of crime.

The judge noted that the alleged huge sums of money stolen from NYS went through some of the suspects' accounts.

The judge said police and prosecution only needed to establish reasonable suspicion before preferring the money laundering charge and the rest should be left for the trial court.

"It is clear there was inquiry on a complaint made by the NYS of theft at the said service. The inquiry led to the suspects being arrested and arraigned in court.

He added : The inquiry as per the affidavit evidence before me also revealed the amounts received by the suspects were part of the monies allegedly stolen from the NYS,"

In his view, justice Onguto said the suspects will not suffer double jeopardy simply by reason of the two cases being prosecuted simultaneously as the particulars to be proven by the prosecution are different.