Former Devolution Ministry Principal Secretary Peter Mangiti (right) and other accused persons in the theft of Sh791 million from the National Youth Service appear before the Anti-Corruption Court in Nairobi on November 25, 2016.
Former PS Peter Mangiti and ex-senior officials in the Ministry of Devolution have been freed after battling in court for almost a decade over alleged procurement irregularities for training materials for the National Youth Service (NYS).
Quashing the charges against Mr Mangiti, 22 former officials of the ministerial tender committee and directors of the company that won the Sh47.6 million tender, the Court of Appeal said there was insufficient evidence to put them on their defence.
Appellate court judges Jamila Mohammed, Francis Tuiyott and Pauline Nyamweya further faulted the High Court for lumping all the accused persons together and placing them on their defence without showing the irregularities played by each of them.
Former Planning PS Peter Mangiti at a Nairobi Court on November 18, 2015.
"The evaluation of the evidence must therefore be with reference to each accused person, and it is at this point that the High Court erred in treating the appellants as a composite, when the charges brought against each one of them were individual," said the judges.
The 23 persons, one of them has since died, had been acquitted by the trial court in January 2018, but the prosecution appealed against the decision and High Court judge Esther Maina overturned the ruling and ordered each of the accused persons to be placed on their defence.
The judges after analysing the entire evidence adduced in relation to each count and as against each of the accused persons, the court should have noted that there was no justifiable reason to overturn the magistrate's finding.
Further, the court said there was conflicting evidence that exonerated the former officials, as some witnesses confirmed that the procurement was triggered by the user department at NYS and requisitioned by the Director General of the agency and who proposed the use of the restricted tender method.
The judges added that the accounting officers did not sit in any of the committees and that the procurement processes were adhered to.
"In the present appeal, taking into account the evaluation undertaken by the learned 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, and there was also sufficient evidence on record exonerating the appellants which was not evaluated by the learned Judge," said the judges.
Burden of proof
The court said the burden and standard of proof wholly rests on the prosecution, and any gaps in the evidence on the ingredients of the offence that need to be further explained should be construed in the accused person’s favour as an indication that no prima facie has been made out.
"After an accused person is put on their defence, the legal burden still remains on the prosecution to prove the offence, and it is only the standard which changes to one of beyond reasonable doubt," said the judges.
The PS and others were charged in 2016 with eight counts arising from alleged irregular procurement and awarding of a tender to Blue Star Enterprises for the procurement of training materials for the Automotive Engineering Faculty of the NYS and unlawful disposal of Sh47.6 million from the Ministry of Devolution and Planning.
Former President Uhuru Kenyatta congratulates National Youth Service (NYS) recruits after they were awarded during their passing-out parade at NYS College in Gilgil, Nakuru County, on April 24, 2021.
Mr Mangiti had been charged alongside Mr Adan Gedow Harakhe, who was the senior deputy Director General at NYS and Mr Henry Nyongesa Pilisi, who was a supply chain management officer at the agency.
The members of the ministerial tender committee who had been charged were Hassan Noor Hassan, John Musyoka Munywoki, Ruth Njeri Kiiru, Hezbourne Mackobongo, Michael Wesley Ojiambo, James Kirigwi, Salim Ali Molla, Samuel Mndanyi Wachenje and and Samuel Cloyd Odhiambo were also facing the charges.
Betty Njoki Muriithi and Jenniffer Muthoni Kinoti, the directors of Blue Star Enterprises which was awarded the subject tender and paid for the training materials were among the accused persons.
The High Court had ruled that the evidence adduced by the prosecution showed that there were breaches of the procurement process by the accused persons in their respective capacities.
The judge had said there were irregularities right from the beginning in the choice of the restricted procurement method where there was no urgency, followed by failures by the tender evaluation committee and the ministerial tender committee in the evaluation of the bids, deliberation, and award of the tender to a supplier who was not pre-qualified and finally payment by the accounting officer.
So far, Selesio Karanja, who was in charge of the procurement, remains the only person found guilty and jailed for the scandal that came to be known as NYS1.
