Judiciary now declines to pay Sh42m Elgon Place rent

By FAITH RONOH

Kenya: Controversy surrounding the lease and use of Elgon Place building that was supposed to host Court of Appeal judges is set to escalate after the Judiciary sought to reverse its decision to pay rent for the building.

Chief Registrar of the Judiciary Anne Amadi said the Judiciary would not pay Sh42.5 million rent for the 2014 quarter 1 because Treasury did not authorise lease payment in dollars.

Speaking to The Standard on Sunday Amadi said, “We will not pay rent for the first quarter because as I said before, there are questions that need to be answered.” A section of the media had earlier reported that the Judiciary had entered into a six-year lease agreement of the premises for an annual rent of Sh603.6 million.

Amadi, in a letter to Senior Property Manager, Commercial, Knight Frank, pointed out that the Auditor General had raised questions on the procurement of the building, prompting her decision.

But in what might raise questions on the motives of the Judiciary declining to pay rent for the premise, it is emerging that the original cost of leasing the premise, according to lease documents seen by The Standard on Sunday per year is Sh54 million contrary to reports that it would cost Sh603.6 billion.

Total rental charge for 10 years, according to the document amounts to Sh748 million. Efforts to get comment from the property manager were futile as they did not respond to our calls and text queries.

However, former Chief Registrar of the Judiciary Gladys Shollei, who was among those responsible for the lease of the premise in question, faulted the Judiciary for misleading the public by giving conflicting figures on the lease amount agreed upon when the lease documents were approved.

“It would cost Sh54 million per year totaling to Sh748 million in ten years, which is no small amount, and is nowhere near the said Sh3.62 billion,” said Shollei.

According to Shollei, Chief Justice (CJ) Willy Mutunga together with other top officials of JSC perused and approved the heads of terms and the lease without raising the very same questions being raised now.

Minutes of the Judicial Service Commission equally indicate that the Commission had approved the leasing of the premises.

Black and white

Shollei said: “The terms thereof, including the denominating of rent in US dollars, were there in black and white but no objection was raised. This is precisely because there was nothing wrong or peculiar about this.  The quotations for many items procured by government are denominated in US dollars, including plane tickets and computers”.

“A fixed exchange rate, which is the Central Bank of Kenya mean, is set and the payment made in Kenya shillings. The judiciary does not operate a dollar account and it is hard to see how practical it would be for it to pay its rent in dollars,” she added.

She explained that the premise was handed over to the CJ who toured the facility and expressed his satisfaction.

Documents shown to The Standard on Sunday detail how the CJ  “ordered” the Court of Appeal judges to move into the premises or face transfers to Malindi, Nyeri or Kisumu.

“It is the Court of Appeal Judges who subsequently threw a spanner in the works by refusing to move to the new building on grounds of harmful radiation allegedly emitted by adjacent communication transmission masts,” Shollei added.

The building has been under scrutiny to establish the radiation levels of cumulative non-ionising at various selected points and offices due to alleged presence of a huge number of antennas installed on masts next to it.

Amadi in the letter says: “Investigations into the potential threat posed to health of Court of Appeal judges and other staff by non-ionising radiation from the transmission masts erected on adjacent to the property are yet to be concluded.”

According to a source at the Communication Commission of Kenya (CCK) who sought anonymity, the Judiciary was to develop terms of reference and invite all stakeholders to agree on how the radiation audit exercise was to be undertaken.

Documents indicate that draft terms of reference were drawn up and forwarded to the CJ late last year. However, the Chief Justice is yet to forward the same to CCK.

Interestingly, this newspaper had exposed the fact that the initial report issued on the preliminary analysis on radiation had been disowned by the supposed consultant.

 However, according to a source in the judiciary, the Supreme Court was open to moving to the Elgon Place.  “In a recent meeting, the Supreme Court resolved that the Registrar to prepare and present to the Chief Registrar the budget for the cost of moving the Supreme Court to another premise until such time when the exercise of refurbishing the Supreme Court Building will be completed.

It was estimated that the process may take between 12 to 24 months. The court should move to the new premises during the Easter vacation.” It, therefore, remains unknown exactly why the Judiciary reversed this decision

Meanwhile, the Judiciary cancelled construction of a Sh691 million High Court building at Kapsowar in Elgeyo Marakwet County, saying it did not have land to erect the building even after the award of the contract.

 Shollei has since dismissed the claims saying land was there but it had been hosting the Administration Police (AP) Camp in the area.

“At the time construction was to commence, the APs were unable to vacate the land to enable the contractor move to site.

Given that security installations are given precedence in such instances it was proposed to move the law court building to alternative land.

However, this would take time to source and the Judiciary requested for a variation to move the contract to the Homa Bay site, which was duly approved by the Public Procurement Oversight Authority,” she explained.

Huge loss

In a memo to the CJ,   Amadi recommends the cancellation of the contract saying: “Although we have sought and received authorisaton from the Public Procurement and Oversight Authority for the transfer of sites, our concern is that the planning stage requires all necessary documentation like land title verified.”

She continued, “The Judiciary would not suffer any loss for the cancellation as the “termination clause requires that the contractor be paid  for value of works done… The Judiciary can terminate the contract without huge loss as the contractor has not moved to site.”

Sources further indicate that no money has so far been paid to the contractor. Shollei also sought to clear the air on the construction of a court in Mavoko that has been the centre of controversy.

“The project to set up a court in Mavoko was to be done jointly with the area local government who would supply the land.  The Judiciary would then build a prefabricated court house on the land.

However, the land promised was not forthcoming and the Judiciary once again requested for a variation of site. The contract was transferred to Runyenjes and the contractor, M/s Timsales Limited has fully executed the contract.”