Court declines former NYS clerk bid for Sh468m graft case quashed

Former NYS clerk Evans Wafula Kundu. [File, Standard]

Hopes by a former clerk at the National Youth Service (NYS) Evans Wafula Kundu to be let off the hook in a Sh468 million corruption case were dashed when the High Court on July 2 declined to drop it.

Kundu is one of the suspects charged alongside former PS Lilian Omollo and former NYS Director-General Richard Ndubai and traders who allegedly benefited from payments for goods and services never supplied to the State agency

Being in charge of the mechanical and transport department at NYS and earning a salary of Sh26,000, Kundu is alleged to have illegally amassed more than Sh500 million in wealth during the looting spree at the State agency when Sh9 billion was lost through dubious contracts and fictitious payments.

For the period between 2013 and 2017 when he was earning a net monthly salary of between Sh9,564 and Sh26,300, Kundu deposited in his accounts cash totalling Sh197,391,968.  

During the four years, he also alleged to have acquired property estimated at around Sh350 million which is subject to a forfeiture suit pending in the High Court following his arrest and prosecution over fraud allegation of Sh468 million at NYS in 2018.

Following investigations by the Ethics and Anti-Corruption Commission following massive loss of funds at the youth facility, the Director of Public Prosecution (DPP) in 2018 opened 10 separate files against all suspects linked to the fraud including Kundu.

Later, the DPP sought consolidation of the initial 10 files cases against all the suspects linked to the NYS II scandal which were segregated into three cases being Anti-Corruption Cases (ACC) 8, 10, and 11 of 2018

Aggrieved by the decision, Kundu petitioned the High Court challenging the decision by the State prosecutor to institute three separate trials against him.

He said the move had subjected him to embarrassment since he has been hopping from one court to another to face multiple proceedings relating to the similar transaction.

“The three have created a complexity that makes me spend most of my time in the courtrooms without any substantial progress given that there are also many accused persons in each case,” Kundu stated.

He also contended that the three coinciding and corresponding trials violated his right to a fair trial under Article 50 of the Constitution and urged the court to declare charges illegal and terminate the same.

“By being exposed to three competing trials the principle of double jeopardy in expanded meaning is violated. It is illegal for me to be subjected to several procedures twice for the same offence,” Kundu informed High Court judge Francis Gikonyo.

According to him, the prosecution in the three courts is based on the same witnesses and witness statements.

The former NYS employee also urged the court to terminate the three grafts against him for dragging in court without being concluded since 2018.

“The charges against Kundu as draft are not similar and the evidence is not the same. Therefore the charges do not prejudice the petitioner since he is able to understand the cases against him,” the DPP argued.

In his judgment rendered yesterday, Justice Gikonyo declined that plea by Kundu to quash the three graft cases against him for lack of merit and directed cases to proceed to full trial saying the charges were properly, lawful, and constitutionally instituted by the DPP in 2018.