More freedom for DP Gachagua as State willing to refund him Sh202m

Deputy President Rigathi Gachagua address members of the public during the 59th Jamhuri day celebrations at the Nyayo National Stadium on December 12, 2022. [Kelly Ayodi, Standard]

The Asset Recovery Agency (ARA) has made an about-turn and urged the Court of Appeal to return Sh202 million that was seized from Deputy President Rigathi Gachagua in the last months of the former regime.

ARA has in court filings disowned its earlier position and now claims that Gachagua's millions were not proceeds of corruption and that its officers misled the High Court to issue an order that the amount be surrendered to the State.

"We have obtained new evidence that satisfactorily explains the source and legitimacy of the funds. ARA is satisfied that the amount is not proceeds of crime as was initially perceived and pray that the money be released to the appellant," said ARA.

ARA filings are in a reply to the DP's appeal seeking to recover his money on account that at the time Justice Esther Maina delivered her judgment on July 28, 2022, they did not have evidence to prove it was legitimate.

Justice Maina had ordered Gachagua and his business associate Anne Kimemia trading as Jenne Enterprises Ltd to surrender the funds to the State after finding that they were proceeds of crime acquired through corruption.

According to the judge, ARA which filed the suit had proved beyond any reasonable doubt that the DP and his associate engaged in corrupt practices and acquired the millions through ways they could not explain.

Justice Maina had ruled that the only evidence the DP brought to court was a letter from a certain government ministry claiming that his company had been awarded a multi-million shillings contract but there was no evidence that he executed the contract or supplied the goods and services.

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But the DP, through senior counsel Kioko Kilukumi, appealed against the judgment arguing that he was not given a fair hearing by the High Court judge.

According to Gachagua, he had provided a sufficient explanation of how he acquired the Sh202 million but the judge disregarded his evidence and only relied on the evidence submitted by the State agency.

He has asked the appellate court to overturn the High Court decision and return to him the money.

In its response through an affidavit sworn by the investigating officer Fredrick Musyoki, ARA said they are not opposed to the application, arguing that they were also misled by the former Director of Criminal Investigations George Kinoti to believe the money was proceeds of graft.

"Since the DCI had purportedly investigated the matter, we relied on their conclusion that the funds were proceeds of crime and it was on that assumption that we filed the suit to have the money forfeited to the government," swore Musyoki.

Their case against Gachagua was solely based on a corruption case where the DP was charged with various counts of money laundering but after the Director of Public Prosecution withdrew the case, they started fresh investigations which showed the money was clean. Musyoki swore that on November 14, 2022, they wrote to six State agencies that the DP had traded with to confirm if indeed they paid for delivered services and goods.

Among the State agencies they inquired from were Kenya Tsetse and Trypanosomiasis Eradication Council (KENTTEC), State Department for ASAL and Regional Development, Kenya Power and Lighting Company, State Department for Lands and the County Government of Bungoma.

"The agencies confirmed to us that Gachagua and his companies performed all the obligations as per the contracts and that they received value for money after he delivered all the goods and services he was contracted to supply," said Musyoki.

He said that KENTTEC confirmed that they have never had any complaints regarding the contract with Gachagua's company and that the money paid was duly authorised and signed for.

From the State Department for ASAL and Regional Development, ARA said they received confirmation that the DP was paid Sh32 million after his company satisfactorily completed the construction of Primary Sewer and Electro-Mechanical Works with no arising complaints.

Musyoki swore that KPLC also confirmed to them that the Sh10 million paid to Gachagua's company Wamunyoro Investment Limited was for the graveling of Nairobi West Office Yard with no complaints or defaults raised.

"We also received confirmation from the Ministry of Lands that the Sh65 million paid to the appellant and his companies were for the supply of flatbed scanners which were delivered as per the contract with no complaints," swore Musyoki.

He added that the County Government of Bungoma confirmed that they paid Gachagua's company Encarter Diagnostic Limited Sh35 million for services performed which were value for money.