Former Treasury CS Henry Rotich loses bid to stop Sh63 billion dams' case

Former Treasury Cabinet Secretary Henry Rotich. [John Muchucha, Standard]

Former Treasury Cabinet Secretary Henry Rotich has suffered a major setback in his bid to stop the Director of Public Prosecutions (DPP) from proceeding with the Sh63 million Arror and Kimwarer dams’ scandal.

Lady Justice Esther Maina ruled that the former CS has not disclosed any valid reasons to warrant stopping the case where he is facing charges of conspiracy to defraud the government.

“I have carefully considered his petition seeking to stop the trial but I find no justifiable reasons advanced to terminate the case. In the end, I find no merit in the application and dismiss it in its entirety,” ruled Maina.

Justice Maina’s decision means that Rotich is at risk of facing a lengthy jail term should the DPP prove that he conspired to defraud the government and caused the loss of Sh63 billion meant to construct the two dams in Elgeyo Marakwet County.

Rotich is facing 21 charges ranging from conspiracy to defraud the government, willful failure to comply with procurement rules, abuse of office, engaging in projects without prior planning, failing to comply with laws on managing public funds and financial misconduct.

He was charged afresh alongside former Kerio Valley Development Authority (KVDA) boss David Kimosop, former Chief Economist Kennedy Nyakundi, Jackson Kinyanjui and Titus Muriithi.

David Kipchumba Kimosop (left), Jackson Njau Kinyanjui and Kennedy Nyakundi Nyachiro at a Milimani Court, November 2021. [Collins Kweyu, Standard]

The charges allege that Rotich, Kimosop, Nyakundi, Kinyanjui and Muriithi conspired to defraud the government Sh54 billion by entering into a contract for construction of the Arror and Kimwarer multi-purpose dams without approval.

Other charges state that as persons who were entrusted to manage public funds, they failed to comply with the Public Procurement and Asset Disposal Act by directly procuring loans from Italian financiers for the development of Arror and Kimwarer dams.

Rotich and Kimosop face an additional charge of engaging in the project without prior planning where the prosecution claims they commenced the contract to construct the two dams in violation of public procurement laws.

In another count, the former CS was charged with abuse of office ss he allegedly used his office to improperly confer contractual rights and benefits to CMC di Ravena totalling Sh34 billion, being the contractual sum for constructing the Kimwarer Dam.

The charge sheet state further that the accused persons unlawfully entered into a commercial loan agreement with Italian companies that exceeded the national public debt limit and placing Kenya business with an insurer not registered.

The DPP had initially charged him alongside his former Principal Secretary Kamau Thugge but he withdrew the case against the latter alongside nine other accused who agreed to become prosecution witnesses.

But Rotich filed the petition challenging his prosecution arguing that he was being sacrificed since he was not the one who negotiated the contract for building the Arror and Kimwarer dams in Elgeyo Marakwet County.

The CS also questioned why the DPP dropped charges against his former PS while proceeding with his prosecution despite the fact that he only signed the contract agreements at the tail-end of the process as part of ministerial responsibilities.

Kenya Forest Service officers keeping guard during the survey of  Arror, Elgeyo Marakwet County, 2019. [Peter Ochieng, Standard]

He also questioned why he was being charged while the Attorney General who offered legal advice, giving the project a green light to proceed, and other people who played a key role in approving the construction were left out.

The DPP however, defended the move to charge the former CS arguing that he will have a chance to defend himself before the anti-corruption court.

The prosecutors accused Rotich of abusing the court process to block the criminal trial instead of allowing the case and appeal if dissatisfied with any decision reached by the trial magistrate.

Justice Maina agreed with the DPP’s submissions and directed that the trial before the magistrate court should proceed as scheduled.