Seven suspended Geothermal Development Corporation (GDC) managers have obtained court orders barring their prosecution over alleged irregularities in the award of a Sh1.7 billion tender for rig moving services.
Justice George Odunga has ordered the anti-corruption court not to proceed with prosecuting them after finding that their conduct in the disputed tender was not illegal.
The judge held that the seven did not contravene the law by failing to consider past pricing of a similar tender when they awarded Bonafide Clearing and Forwarding Limited the lucrative deal.
Justice Odunga said past pricing was not a part of the tender invitation documents hence the managers would have flouted procurement laws by considering it for the bid awarded to Bonafide Clearing and Forwarding Limited.
The seven are Mr Godwin Mwagae Mwawongo (acting CEO), Mr Peter Ayodo Omenda (consultancy) and tender committee members Mr Abraham Kipchirchir Saat, Mr Michael Maingi Mbevi, Mr Nicholas Weke, Mr Caleb Mbayi and Mr Bruno Linyiru.
“In the absence of evidence from the police to the contrary, the court found that to expect the applicants to introduce comparison in past prices would clearly have been a violation of the law. For the court to decide to charge a person for not taking an action, which would have amounted to a violation of an express provision of the law, is clearly irrational,” Justice Odunga ruled.
Bonafide Clearing and Forwarding was awarded the deal to move geothermal rigs and other equipment in 40 lots, with each costing Sh42 million, in the Menengai drilling area within a radius of about 500 metres, bringing the total cost to Sh1.7 billion.
Justice Odunga’s had earlier issued a similar order in favour of another former GDC tender committee member—Praxidis Saisi.
Sh5m cash bail
The suspended GDC managers were charged in court in November last year, but released on cash bail of Sh5 million. They were charged alongside former company managing director Silas Simiyu.
Mr Simiyu, however, faces separate additional charges of abuse of office and failing to ensure proper management of public funds.
The anti-corruption commission in a probe last year, recommended that the entire GDC tender committee be held culpable for alleged irregular award of the contract due to glaring anomalies that exposed taxpayers’ funds to wanton embezzlement.
The panel members are accused of inflating the rig movement charges from Sh15 million to Sh42 million per rig, totalling Sh1.7 billion.
The report said the entire tender board should be jointly charged with abuse of office and must be surcharged to refund all money lost during the tender award.
The suspended GDC managers are in a separate case fighting to keep their jobs, and have also obtained a temporary order barring their termination until the court has determined their suit.
Their lawyer Okweh Achiando says in the application that the advertisement was issued without informing his clients of the fate of their positions, contrary to provisions of Kenya’s labour laws.
He has faulted the GDC for suspending the managers before getting official communication from investigative authorities probing their alleged involvement in corruption.
The seven GDC employees were suspended in November last year to pave way for investigations into the contract.
Saisi and Mbayi were sent on compulsory leave pending the outcome of investigations into their alleged involvement in irregular tender awards by the GDC.