Ex-PS, 22 others acquitted in Sh47 million NYS theft case

The Court of Appeal in Nairobi has upheld the acquittal of 23 people, including former Devolution PS Peter Oganga Mangiti, implicated in the multi-million-shilling corruption scandal at the National Youth Service (NYS) 10 years ago.

In the highly publicised case, Mr Mangiti and his co-accused had been charged with conspiring to steal Sh47.6 million from the NYS through irregular purchase of training materials for the service personnel in 2015.

A three-judge bench comprising justices Jamila Mohammed, Francis Tuiyott and Pauline Nyamweya on Friday overturned the High Court’s decision to reinstate the criminal trial and endorsed a magistrate’s ruling that acquitted them in March 2018.

While backing the magistrate court’s decision, the appellate court found there was insufficient evidence to support the charges.

The judges said the High Court failed to evaluate the evidence with reference to each accused person and erred in treating the accused as a composite when the charges facing them were individual.

“We also note in this respect that the trial (magistrate) court did analyse the entire evidence adduced in relation to each count and as against each of the accused persons, and there was therefore no justifiable reason to overturn its findings in this respect,” said the appeals judges.

The case involved the alleged unlawful disposal of Sh47.6 million in public funds from the Ministry of Devolution and Planning to Blue Star Enterprises through a tender for the procurement of training materials for the NYS Automotive Engineering Faculty.

The offence was allegedly committed on diverse dates between December 16, 2014 and September 28, 2015.

The other accused persons included Adan Gedow Harakhe (Senior Deputy Director-General at NYS), Henry Nyongesa Pilisi (NYS supply chain management officer), Hassan Noor Hassan (former tender committee chairman at the Devolution ministry) and 12 members of the Ministerial Tender Committees.

Others were two directors of Blue Star Enterprises, Betty Njoki Muriithi and Jennifer Muthoni Kinoti, and five members of the Tender Evaluation Committee.

They faced eight charges related to flouting procurement laws by awarding an automotive supply contract irregularly and paying Blue Star Enterprises Sh47.6 million. Other offences included abuse of office and fraudulent acquisition of public property.

Trial magistrate Kennedy Bidali acquitted them in a ruling dated March 9, 2018 on grounds that the tender was properly evaluated and the process of procurement had complied with and was in accordance with the law.

The magistrate, however, convicted former NYS supply chain assistant manager Salesio Karanja for the offence of fraudulent practice in procurement by inserting a company known as Dama Services Limited in the tender opening register. He was sentenced to serve four years in jail.

Director of Public Prosecutions was dissatisfied with the acquittal and appealed at the High Court, where Justice Esther Maina ruled in favour of the State and ordered that the accused persons be placed on their defence.

In the verdict dated July 22, 2022 the judge determined that the evidence adduced by the prosecution as a whole indicated breaches of the procurement process by the accused persons in their respective capacities. The DPP argued that there was overwhelming evidence to support the charges.

Justice Maina had also found that prosecution had established that the directors of Blue Star Enterprises received a benefit through an unlawful procurement process.

However, the accused escalated the dispute to the court of appeal where the judges on Friday determined that it was wrong for the High Court to reverse the lower court's decision.

The judges added that the High Court reversed the acquittal notwithstanding evidence by eight prosecution witnesses that the subject procurement was undertaken according to the relevant laws and procedures.

The witnesses also testified that the contract had been budgeted for; a technical evaluation was undertaken within time, and that the original report of the evaluation committee on the subject tender was forwarded to the Anti-Corruption officers on request and what was produced in evidence was an undated copy.

"Taking into account the evaluation undertaken by the High Court judge of the evidence on record, we are of the view that the appellants should not have been called upon to enter their defence, for the reasons that there was insufficient evidence that linked appellants to each of the charges brought against them. There was also sufficient evidence on record exonerating the appellants which was not evaluated by the judge," said the court of appeal.

→ [email protected]