that this honourable court will be moved on the day of 2015 at 9 O’clock in the forenoon or so soon thereafter as the matter may be reached for hearing of an application on the part of Counsel for the intended Interested Party /applicant herein herein for 1. THAT THAT Jane Kabura Kabura be enjoined in these proceedings proceedings as an Interested Interested Party . 2. That Jane Jane Kabura Kabura do file pleadingsan pleadingsand d response responses s in this matter 3. THAT THAT the costs of this application be be provided provided for.
is grounded on the affidavit of
the Intended Interested Party / Applicant herein and on the
following grounds: 1.
proceedings proceedings herein commenced by the ASSETS ASSETS RECOVERY RECOVERY AGENCY are a misuse of the court process aimed at shielding real players players in the alleged embezzlement of public funds .
2.
proceedings proceedings touch on me personally and the my companies and the payments payments made to my companies in ordinary course of business .
3.
is a necessity that the cour t appreciates proper facts into the affair and be able to give an informed finding
4.
The Appli Applicants cants herein herein the the Assets Assets Recov Recovery ery Agency Agency have have peddled peddled falsehoods falsehoods misleadi misleading ng the court into into issuing issuing orders orders to the detriment of innocent third parties.
at
this
day of
2016.
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Oraro & Company Advocates 6th Floor ACK Ga rdens Annex 1st Ngong Avenue, P.O. Box 51236-00200 The Assets Recovery Agency. Attorney Generals Chambers
MMA Advocates, LLP Trans National Plaza, 9th Floor Wing B City Hall Way , Opp. The Supreme Court, Tel +254-733-121-000/0708-222-111 E mail :
[email protected] P.O. Box 112233-00100 Wagara, Koyyoko & Company Advocates Elgon Court, Block A Apartment A4 Ralph Bunche Road P.O. Box 4078-00100 Email:
[email protected]
Josephine Kabura Irungu Sam M Mwadime Martin Muthomi Gitonga Jedida Wangui Gethi P.O. Box 12633-10109
I I,
, a resident of Nairobi County and of Post Office Box Number……Nairobi in the Republic of Kenya do hereby make oath and solemnly swear ad state as follows: I am a female adult of sound mind residing and working for gain in Nairobi and elsewhere and one of the parties in this case and hence competent t o swear this affidavit. I am a business lady and a general merchant undertaking numerous projects in both the private and public sectors. I do my businesses through a chain of over twenty (20) duly registered companies. I source my businesses through either the normal procurement process for the public sector and/or private engagement with the procuring entities for the private sector. I am involved involved in business business with is the National National Youth Youth Service (NYS).an (NYS).and d involved in supply of building building materials .
through these I have raised invoices and the NYS has always always paid for the works done and services delivered through the Ministry of Devolution & Planning in the normal course of business. with regard to the contracts under investigations by several Government agencies and which form the basis of this case, I wish to state as follows. I met Ann Mumbi Waiguru (former Cabinet Secretary) while working at KDN between April and May 2012 and WE became friends and great acquaintances. at her request I took my CV personally to her at her house in Runda I found her in the house where we exchanged greetings and she introduced me to her sons Ian Ron and Don. during the time we met Mitsubishi Pajero gold in color.
he drove a maroon Mercedes Benz C200 but she later replaced it with the new
after introduction introduction and light discuss discussion ion I gave her my CV and we plunged into the issue of how she could assist me do business business with various Government Government and private organizations . she informed me she could link me with influential and resourceful contractors at the Finance Ministry including including a Mr Karani Karani Nyamu who she said she had introduced introduced ( a close friend& friend& Business Business associate associate of her’s ) whom she told me she had assisted in securing major contracts through his companies Verve K.O, and Zinga technologies( Which do ICT consulting and Major ICT project Implementation ). during during this time I was interested interested in securing ICT jobs like the supply supply or service service delivery at the IFMIS directorate where she worked as a Director.
we soon started off by her giving me small jobs like having my technician maintain her silver Mac book Laptop which I gathered was quite dear to her . in the year 2013 it was campaign campaign time and the issue of IFMIS and Minstry Minstry of Finance contracts contracts was overtaken by events but she told me that she was heavily involved with the now Ruling Party in their campaign to ensure that they won the elections .she assured me that if the now Ruling party won the elactions she will be appointed a cabinet Secretary and would then do business with me . Madam Waiguru Waiguru was appointed cabinet secretary ministry of planning and devolution . from about June 2014 I started getting small jobs for the supply of General stationery. sometime in mid August 2014 the Cabinet Secretary invited me to her house in Runda and requested me to bring along the following personal personal Documents a) Copy of my national identification card b) Passport size photos c) Copy of my PIN Certificate. To facilitate the incorporation of companies. when I arrived in her house her driver AINEA ushered me into the house and she found me already seated at her lounge . I gave her the documents and she assured me that she would assist me in having the companies registered without any delay during during the period period between between August August and Septem September ber 2014 following
the Cabinet Cabinet Secret Secretary ary introduc introduced ed me to the
Her Peronal assistant , Betty Maina . ii) Hassan Noor Noor the Director of Planning Devolution Devolution Ministry iii) Adan Harake wjo was then poised for a senior position in the administrative and financial structure in the National Youth Service. iv) Mutahi Ngunyi a consultant at NYS . she informed me that t hese people will be of assistance in processing of tenders and payments for the goods supplied and services rendered.
THAT on the 7th October 2014 Betty Maina called me and requested for a meetimg at a restaurant near Uchumi House Nairobi, I proceeded to the venue as agreed had a cup of tea and then she gave me about seven copies of certificates of incorporation of the companies the CS had assisted assisted to be registered. THAT subsequently the Cabinet Secretary instructed me to open bank accounts for the companies at Family Bank and specifically at Kenya Tea Development Authority Plaza Branch. THAT THA T with these companies duly registered I was no poised to honest business with with the National Youth Youth Service. THAT in the month THAT month of Novem November ber 2014 2014 I receiv received ed my first first Local Local Purchas Purchasee order order ( LPO) LPO) for the delivery delivery of construction materials for the Kibera project by Hassan Hassan Noor Noor . THAT THA T upon delivery of the materials ordered in the said LPO Mr Mutahi Ngunyi gave me details of an account to
which he had instructed that I deposit deposit Ksh 1.5 Million. THAT I held regular THAT regular Sunday Sunday meetings with Mr Harake Harake , Hassan Hassan Noor and other officials officials at NYS Head Quarters where where we shared shared and brainstorm brainstormed ed on the deliveries and accomplishe accomplished d pending suppliers suppliers and payments payments and the upcoming LPOS . THAT the CS was fully aware of the transactions leading to the payment of KSH 791 THAT 791 Million . she knew that the project was genuine business where materials were supplied and payments made thereto was for my business . THAT as I have said THAT said above above she was was involve involved d at all levels levels held several several meetings meetings with me me and variou variouss highly highly placed placed Gover Governme nment nt offic officials ials includ including ing the Direct Director or of Bankin Banking g Fraud Fraud Depar Departme tment nt Mr Mugw Mugwanj anjaa in the investigations when this matter arose under the disguised disguised allegations of corruption. THAT the CS clearly Understands and she has always THAT always understood understood that the payments made in the transaction transaction was not fraudulent and no offence under the Money Laundering Act has been committed. THAT this matter has been blown THAT blown out of proportion proportion with false driven agenda agenda to appease the public that it is a fight against corruption . THAT the court THAT court proces processs has been variou variously sly abused abused orders orders obtained obtained unjustly unjustly to achiev achievee this this misplaced perception.
fraudu fraudulen lentt and
THAT THA T I continued and did genuine business with with NYS which business business continued without any any hitch . at some point, Mr. Harakhe summoned the Director of Finance at his NYS office and introduced me as the sole merchant assigned to deliver all the road materials. He further instructed me to contact the Finance Director
should there occur payment hiccups. after the Finance Director left, Mr.Harakhe informed me that, that was the officer he was requesting to physically sign the documents documents after he had authorized in the systems. systems. I never went to him once since I experienced experienced no hiccups at all. officially Harakhe was appointed AIE holder February 2015, though he had started acting as the AIE much earlier. once Mr.Harakhe took over the following of payments, remittances were effected much faster than when Betty did this previously because, while Betty followed t hrough the phone, Mr. Harakhe did it physically. physically. Mr. Harakhe talked of plans to issue new road contracts but pointed out that the CS WAIGURU and Mr. Hassan Hassan Noor Noor had issued issued out food and small small equipm equipment ent under under restricte restricted d tender tendering ing and high high prices prices alongs alongside ide authorizing expensive consultancies, a situation that had led to money running out. That is how Mr.Harakhe requested for Kshs. 3.5 Billion from the Treasury to enable him issue additional LPOs for Kshs. 2 Billion for construction materials. He stated he had already i nitiated the processing of around Kshs. 700Million. on 3rd May 2015, he also requested me to meet him at his office for our regular meetings and that I take Kshs. 20Million in cash with me which he told me to hand over to a gentleman only introduced to me as Mohammed. in prodding further about why a stranger was being given the Kshs 20Million, he told me that it was meant to facilitate more business. Further, Mr. Mr. Harakhe also requested requested that I deposit Kshs. Kshs. 40Million in an account number he gave me. I Informed the CS WAIGURU WAIGURU Waiguru Waiguru about the monies requested by Mr Harakhe and she told me that
she was aware and that I should make the deposit deposit as he had requested. when I updated the CS WAIGURU on the goings on, she promised to summon him to her office. She later informed me that Mr. Harakhe had denied making the commitments. Mr. Harakhe even made it look like he hadn’t hatched a mischievous plan by having the Head of ICT at NYS do a letter to DCI on the 26 th of May. However, he sent the DCI off when preliminary reports showed he had authorized the commitments. in dealing with Jua Kali workers and contractors, I was advised by CS WAIGURU Miss Waiguru to withdraw money in cash and carry it in bags since the bulk of payees could neither take cheques nor RTGS. Since the amounts of money involved was sometimes large, I had to call the bank and make prior arrangements for the money to be availed in cash. Most Most of the time the CS WAIGU WAIGURU RU would request request that I give PART ART profits to a lady by name Loise Mbarire CS Waigurus Waigurus sister who was supposed supposed to give back the money to me or the CS WAIGURU WAIGURU after servicing her deliveries. Loise informed me that she worked in a law firm at Finance House along Loita Street. She would come in different vehicles, park in the basement and wait for me to withdraw and take it down to her, one bag at time. after the newspaper exposé on CBK questioning NYS payments, the CS WAIGURU summoned me very early in the morning at her Runda House where where I met Mr. Mutahi Ngunyi, Mr. Mr. Adan Harakhe, Mr. Hassan Hassan Noor and a gentleman by the name Mr. Joseph Mugwanja. They were all mad at Mr.Harakhe for processing orders behind their backs leading to the ensuing mess. Joseph Mugwanja Mugwanja is the current head of Banking Fraud Investigations Department .
during the meeting Miss Waiguru introduced Mr.Mugwanja as a close friend and a person she had worked with particularly during the exercise commissioned by her Ministry sometimes back to track payroll payments for ghost workers. The ghost workers project which brought descent “returns”, and which the CS WAIGURU said had achieved the desired results of creating public perception that the issue of Ghost workers in Government had been eliminated thanks thanks to Mr.Mu Mr.Mugw gwanj anja’ a’ss input input and as a result result of which which the CS WAIGU AIGURU RU expres expressed sed her desire desire to assist assist Mr.Mugwanja Mr.Mugwanja to become the Director of CID in future as show of gratitude. Mr Mutahi Ngunyi advised Madam Madam Waiguru to do an official statement to cool down public anger. He also also advised her to do a backdated letter on the purportedly stolen password similar to one that had been written earlier by an officer in the ICT Department, this time round inviting the CID to intervene, this Back dated letter was dated 5th June 2015, 11 days after the Head of ICT at NYS had done his to the DCI , ostensibly to pave the way for Mr.Mugwanja to officially take charge of investigations and the CS WAIGURU to become the whistle blower. all those in attendance agreed that, since the investigations into the unfolding matter would be conducted by CS Waigur Waiguru u and Anti Corruption Corruption and Ethics Commissi Commission, on, it would would be necessary necessary to divert the attention of the investigating officers. To do so, so, it was agreed that focus would be pegged to works worth about Kshs. 695 Million which had allegedly tried to be siphoned by Harakhe in order to avert many questions. CS Waiguru pointed out that since Kenyans would question the usage of the year’s budget, it was preferable to only condemn a specific transaction then deal with the consequences later.
It was also agreed that to disguise the truth, NYS staff would be charged in a phony set up for purposes of driving favourable public perception. Mr. Mugwanja further instructed Mr. Harakhe to go to Banking Fraud Investigations Department (BFID) to record a statement pointing out a plot by other individuals in order to take the blame away from the CS WAIGURU, the Ministry and rope in The Treasury. Treasury. Mr.Harakhe Mr.Harakhe inquired about the cybercrime report on the stolen password. His concern was that by then it had been discover discovered ed that he, indeed, indeed, had author authorized ized the financial financial commitments commitments.. Mr.Mug Mr.Mugwanj wanjaa assured assured him that that he would deal with it. at the same time, Mr.Harakhe also warned me not to speak to any one on the matter and also wait for Mr. Mugwanja to summon me at BFID to do a statement. regarding my appearance at BFID, Mr.Mugwanja Mr.Mugwanja requested that I should not go with a lawyer. I was subsequently summoned to BFID on 2 nd July 2015 and I was asked to carry with me documentation that would show that I actually did deliver the construction materials. I consequently carried my copies of my duplicate delivery note copies in two cartons and I also informed the BFID officers that the NYS Procurement Department had the original and the duplicates with them.The delivery note duplicate copies & originals bore signatures of NYS procurement officials stationed at slums and signatures of the truck drivers who delivered the materials.These documents, I informed the investigators, were used to process the payments.
I wrote a statement before four BFID officers under Mr.Mugwanja where I gave details of the supply of materials. I also physically took them to the quarries to show the source of materials and had the officers meet the agents whom I had delivered the payments to. Besides, I took them to Kibera and Mukuru roads that were being constructed using the materials. I also informed them that other agents were paid through through Loise Mbarire. I however observed that Mr.Mugwanja Mr.Mugwanja was not happy about this details. Mr. Mugwanja ordered that I go back with the deliveries and come back with them after arranging them in order and also write a statement on the 791m worth of payments I had received. on July 9 th 2015, Mr.Mugwanja and Mr. Matapei Sautet came to my office. I was with two members of my staff. staff. I thought thought they had come to pick the arranged arranged deliveries. deliveries. As I was preparing preparing to hand over the deliveries, deliveries, Mr.Mugwanja Mr.Mugwanja gave me his phone to speak to someone. THAT the person THAT person on the phone was the CS WAIGURU AIGURU who instructed instructed that I hand over to Mr.Mug Mr.Mugwanja wanja ksh 80,000,000/= I had earlier disclosed to the CS WAIGURU WAIGURU I had kept in the two office safes with bags. THAT THAT CS Waiguru Waiguru She said they would keep it safely away from even NIS who had been looped into the case. on 20th July 2015, I was asked by Mr Mugwanja to go to BFID there was an urgent matter that we needed discuss and act on it fast. upon arrival, Mr. Mugwanja ushered me to his office and told me that they had come up with a plan that would ultimately clear my name and shift the blame to third parties. It is at this point he made a call and asked me to speak to a person on the other side that happened to be CS
WAIGURU, AIGURU, Miss Waiguru. Waiguru. She explained to me that they had found the perfect decoy and that Mr. Mugwanja Mugwanja had prepared a charge sheet for us, the decoy and myself, to be taken to court and start the “cleansing” ritual. as late as 5pm of the same day, this had not happened. At 8:00pm I asked Mr.Mugwanja what would happen at which point and he told me that, I would be booked at Kileleshwa Police station then go to court the following day. I protested telling him I was not ready to spend the night in police custody. He however advised me that, that would not happen and that I would just be taken there, booked in the Cell Register then be taken home where I would spend the night and only return the following morning to Kileleshwa early in the morning to give the impression that the “ arrest” was real. This was done following which I was booked at Kileleshwa Police Station and taken home later by Mr.Matapei Sautet Sautet and was picked picked in the morning morning of the following day by Mr.Sautet and taken to Kileleshwa Police Police Station Station where I was was subseq subsequen uently tly pick pick by an offici official al BFID BFID Landcr Landcruis uiser er vehicle vehicle and taken taken to BFID BFID Headquarters. at BFID, I was processed and told that t he Pawn was also being processed. the pawn and I were taken to court at around 9-10am where we stayed up to 2.00 pm only to be taken back to BFID without being charged in court as Mr Mugwanja had said would happen.(
at this point I got very worried and asked to talk to Mr.Mugwanja Mr.Mugwanja whom I was told had left for a meeting.
Mr.Mugwanja came back at 9pm and told me something had gone terribly wrong and they were trying to fix it.He did not say what was wrong and why the plan did not proceed as agreed. subsequently, subsequently, he told me that I would be released on a Free Police Police Bond to give the impression of the way Police were working. The phony moves of going for suspects were in the meantime maintained. I was released on a Free Police on Friday 14th August 2015, Mr.Matapei Sautet came to my office and showed me some court orders he had obtained to allow him pick withdrawal slips from Family Bank and also a table he had prepared to use in court. He was accompanied by a gentleman called Mr. Erastus Nyamai, whom he introduced as a former police officer but that time working with Family Bank’s security Department and who was the one who had assisted him make the table which would be used together with the tellers day j ob (from which Nyamai had) to exonerate me. Mr.Matapei Mr.Matapei Sautet had with him bundles of original banking slips. slips. Mr.Matapei Mr.Matapei Sautet said some were not signed and Mr.Mugwanja Mr.Mugwanja had requested that I sign them. I wondered why they had originals but I remembered sometimes tellers would give me debit slips when systems were offline to access my money and agreed to sign. I signed a number of slips assuming they were all from my company but after signing other two slips both dated 20th January 2015 of 10 M each, I realized that the two alongside others were deposit slips that belonged to Mr. John Kago Ndungu. I therefore stopped signing and on inquiring, Mr. Nyamai snatched them from me. Mr.Sautet, Mr.Sautet, at this juncture accused me of refusing to help the CS WAIGURU WAIGURU.. I also informed Mr. Kago about the same. At the point of parting ways, Mr.Sautet forgot the table he was showing me on how he intended to
fabricate details with the express intention of implicating third parties. By the time he came for the table, I had already made a copy. copy. later the CS WAIGURU WAIGURU curiously curiously announced the report from the CID which contained names of people to be indicted and charged. on 26th August 2015 the CS WAIGURU WAIGURU asked asked me to meet her that evening at her Runda house and she asked me to carry Kshs 10Million in cash with me. while in her house, she informed me that, my name would be included on the charge sheet with my three compan companies ies but since since there there was was delive delivery ry of works works and genuin genuinee docume documenta ntatio tion n with with proces processe sess done, done, the CS WAIGURU AIGURU assured me that only ‘funny’ charges would be preferred against me. The charge, as promised, would be abuse of office and breach of public trust. according to the CS WAIGURU, this would technically water down charges and also make it easy for her to assist me later when there was little limelight on the case. the CS WAIGURU also informed me that, she had pushed for charging of many people including the PS and DG so that she would not be implicated anywhere. According to the CS WAIGURU, AIGURU, the idea was to paint the image of a vicious vicious and uncontrolla uncontrollable ble cartel of crooked people working with senior officers which then was beyond beyond the control of the CS WAIGURU. at the Runda meeting, other gentlemen joined in. They included Mr. Mwaniki Munuhe, and Mr. Maina Kamore whom she introduced as her media gurus and who have good connections connections in media. She informed me that she had been working with these media personaliti personalities es since she joined the Governmen Government. t. She also instructed me to
give Mr. Mwaniki Munuhe the sum of Kshs. 10Million for purposes of propaganda and to assist clean my name. on September 11 th2015, the CS WAIGURU publicly released the DCI report on the NYS financial Scandal which had implicated 21 Government employees in the scandal. the next day after the DCI’s report was released ,Mr.Harakhe summoned me to his office, saying that he had been named as suspect number five on the CS WAIGURU’s list and threatened to spill the beans. I informed the CS WAIGURU. on the day of taking plea, 18 th November 2015, the CS WAIGURU called me and enquired if I had money to which I said I did not have. She advised I don’t don’t go the first day. I appeared on Tuesday Tuesday 24th November 2015 where Mr.Mugwanja Mr.Mugwanja Personally provided the bail money. money. after taking plea that evening Mr.Matapei Mr.Matapei Sautet and Mr.Mugwanja Mr.Mugwanja came to my house to know if I was okay and informed me that the EACC was going to carry out raids at a l ater date on all the suspects’ houses. houses. although Mr.Mugwanja guaranteed that there would not be a raid in my house, he requested if I had anything incriminating and that I should “take care” of it. It is at this point that Mugwanja requested for the “secure” phone since if found it could trace back to CS WAIGURU. in my belief that the manner manner investigatio investigations ns have have been conducted conducted,, it is my view that, certain certain individuals individuals are are being shielded from blame while others are being victimized. For instance, one Mr John Kago Ndungu who has never been awarded any contract/tender in the NYS projects under investigations has been labeled the sole conduit for funds in the purported “NYS saga”.
I am personally known to Mr John Kago Ndungu as a fellow customer at family bank. I had personally loaned him 60m in the course of our business relationship, money which he later paid back with interest. I never informed nor involved him in any of my contracts at the NYS either those under investigations by the several investigative agencies nor any other. Apart from the 60m personal loan to Mr John Kago Ndungu I have never given other monies to Mr Kago either physically ,deposited or transferred into any of his known or unknown accounts nor used 3 rd parties to do the same. It is only my Companies, Reinforced Concrete, Foam Home Builders, Roof and all Trading that were ever paid for supply and delivery of the road construction materials amounting to 791m. 791m was paid to my companies after delivering Road Construction Materials using valid NYS LPOs and payments made properly . Prior to the supply of the Road Construction material s in November 2014 the CS WAIGURU WAIGURU had assisted assisted me secure other contracts with about 30 LPOs for my other companies at the NYS with a value in excess of 400M. That I have never before appearing in court met nor called the following; former DG Nelson Githinji, Former PS Eng. Peter Mangiti,Ben Gethi, Hendrick Nyongesa Pilisi, Naftaly Githinji, Ruth Njeri Hihu, Charles Onsase Nyaachi, Mary Wangui Mbuthia, Ezekiel Karanja Kamau, James Gitau Kanuthu, Samuel Kilonzi, Fredrick Okello Nasiche, Nasiche, Regina Regina Nyambura Nyambura Mungai, Philip Joshua Joshua Otinga, Otinga, Jane Wangeci Wangeci Gichuki, David Dicks Dicks Alunga, Alunga, Titus Titus Libondo, Chemos Kororia Ndiema, Joel Kanyi Karenju,Francis Kariuki, Jennifer Manyara Mugure, Roda Kavu Makau, Alloys Kemo and Hendrick Nyongesa.
in my view, the inclusion of Business people Mr John Kago Ndungu, Peter Omari Otuoma ( a Business Associate ), Caroline Njambi ( Mr Omari’s business partner ),Mr. Ben Gethi ( Oil Supplier at NYS ) in these investigations and the ensuing criminal charges is a ploy to divert public attention from the real culprits and malign their names as a merchants supplying to the Government and doing genuine business for several Government agencies. The BFID has only questioned me about 695m attempted fraud at NYS which I have written a statement on and that they have never t aken my statement on the 791m of which I have been charged in court. I have never been interrogated by t he EACC in connection with the 791m worth of NYS contracts i have never deposited or made bank transfers to any of the named Respondents bank accounts accounts . I swear this affidavit to set the record straight and bring forth aspects of the case which have never been covered by investigating agencies and which are crucial t o the case. what is stated hereinabove is true to the best of my knowledge, information and belief safe for information whose source I have disclosed.
at
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by the said
I **** ****** **** **** **** **** **** an advo advocat cate e of this this honour honourable able court court do hereby hereby certify certify that that the annex annexed ed applic applicati ation on is of extr extreme eme urgency urgency deserv deserving ing to be placed before the Duty Duty Judge for the following following reasons : 1. THAT the Applicant herein has learnt of the proceedings filed herein. 2. THAT the proceedings proceedings touch significantly significantly on her business and her person. 3. THA THAT it is nece necesssary ary that hat the Int Intende ended d int interes ereste ted d party arty be allo allow wed to part partic icip ipat ate e in thes hese proc procee eed dings ings to ass assist ist the the cour courtt in making a just and informed decision in the the matters in contention. 4. THAT the the Applicant herein stands to suffer suffer great prejudice of the prayers prayers sought herein are are not granted.
at
this
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2016.
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