From: gordon teti

Fraud case: Ruto gave job to key

By Sunday Nation reporters

April 16 2011

Suspended Higher Education minister William Ruto gave a parastatal job to a potential key witness in a fraud case against him.

Mr Ruto appointed Hellen Chege Njue to the board of trustees of the Coffee Development Fund in July 2009. The Eldoret North MP then was the minister for Agriculture under which the parastatal falls.

Ms Njue was the finance manager at the Kenya Pipeline Company (KPC) when Sh272 million was paid out for plots in Nairobi’s Ngong Forest, a case which landed Mr Ruto, former President Moi’s aide Joshua Kulei and former Lands Commissioner and current Baringo Central MP Sammy Mwaita in court.

In acquitting Mr Ruto and his co-accused on Tuesday last week, Nairobi chief magistrate Gilbert Mutembei made it clear that Ms Njue was the missing link in the prosecution’s case.

“The prosecution failed to produce in court the then finance manager Hellen Njue to give her evidence on how she paid out the money. It is, therefore, clear that none of the accused ever received any money from KPC. The prosecution has failed to prove its case thus all the accused persons have no case to answer,” Mr Mutembei ruled.

Mr Ruto’s appointment of Ms Njue to a parastatal under his ministry at a time when he was facing fraud charges will be seen as curious, considering she was one of the witnesses the prosecution would have relied on in its case.

Ms Njue could have testified against the minister had the prosecution sought her statement or called her as a witness, an omission which has been pointed out by lawyers. No explanation was given as to why Ms Njue was not called as a witness.

“Corporate bodies can only act through human beings and no evidence was placed before the court on identity of persons representing the corporate bodies who made false representations to Hellen Njue,” defence lawyers argued.

At the time of the appointment Mr Ruto was facing a charge of fraudulently receiving money from Ms Njue, acting on behalf of KPC, by pretending he could sell to the corporation 1.75 hectares of land in Ngong Forest. The offence is said to have been committed on September 6, 2001.

Ms Njue’s appointment to the parastatal was published in a Kenya Gazette notice (No. 5262) of May 21, 2009 which stated: “In exercise of the powers conferred by section 34 of the Coffee Act, 2001, the Minister for Agriculture appoints …Hellen Chege Njue (Ms), to be member of the Board of Trustees for the Coffee Development Fund, for a period of three (3) years, with effect from 29th April, 2009.”

The notice was signed by Mr Ruto. Ms Njue’s tenure at the board ends in April 2012.

The Coffee Development Fund was established in 2001 to provide credit and advances to coffee farmers.

False pretences

The charge sheet of July 27, 2004 did not list Ms Njue among the 10 witnesses in the case despite the investigating team asserting that Mr Ruto obtained Sh96 million from her by false pretences. This means that she was a complainant alongside KPC, and therefore would have been a prosecution witness.

During a constitutional court hearing filed by Mr Ruto, his defence team argued that charges against him were defective because the person named as complainant, Ms Njue, never recorded a statement with the police.

Ms Njue has had a brush with the law in the past. In February 2003, she and then KPC managing director Linus Cheruiyot were arrested and charged with conspiring to defraud the company of Sh339 million through a computer tender deal.

Also arrested were KPC’s former projects manager Paul Njuguna Gituku and directors of a city computer firm, Data Logistics Ltd.

She left the company around this time and in 2004 Mr Ruto was taken to court.

Both the police and the State Law Office have been evasive on the reason why the investigators did not take her statement in the case.

Instead, they have engaged in a blame game over the matter.

The two institutions are in charge of investigations and prosecution, respectively, and it would have been expected that they would have exercised the law to compel Ms Njue to testify.

Police commissioner Matthew Iteere kicked off the blame game last Wednesday when he blamed the prosecution.

“I believe we played our role well and the rest was left to the other players,” he said. “You have to understand what the criminal justice system procedure really entails. It involves investigations, prosecution, the court process itself and finally the custody in prison.”

The State Law Office rejected the police position, with Director of Public Prosecutions Keriako Tobiko accusing the police of conducting shoddy investigations and failing to produce witnesses.

“It is grossly unfair for the police commissioner to apportion blame when he knows the duty to conduct investigations, provide statements and produce witnesses in court lies with the police. I really don’t understand what he is talking about. The police said 13 key witnesses could not be traced. Five other key witnesses had died, which brings to 18 the number of witnesses who were not produced in court. The prosecuting counsel could not do anything,” Mr Tobiko said on Wednesday.

When the Sunday Nation contacted the State Law office on the specific matter of Ms Njue on Thursday, Mr Tobiko was dismissive.

“I have said enough about this case,” he said and hung up.

Police spokesman Eric Kiraithe was also evasive.

“The law prohibits police officers from taking statements from witnesses that would implicate the same witnesses. Going by what we know so far, we really do not want to blame either the police or the prosecution,” he said. “You cannot coerce anybody to give evidence otherwise the evidence would be very weak.”

According to Mr Kiraithe, the State Law Office has qualified people who must have been satisfied with police investigations before proceeding with the trial.

More facts

“If the chief public prosecutor was not satisfied with the investigations they would have returned the file to us for more facts. This would not have been the first time a file is brought back to the police,” he said.

No explanation has been given for other curious facts surrounding the case. Of the witnesses that the prosecution had lined up, 13 could not be found and five died while the case was going on, it was reported.

The executive director of Transparency International, Kenya, Mr Samuel Kimeu, believes the case was bungled by weak institutions that lack independence.

“The acquittal of suspects in high profile graft cases even when you can quantify the resources and utilities that have been stolen shows that our institutions are still weak and so far unable to deliver justice where corruption is concerned,” he said. “What is certain is that collectively the legal system has failed this country.”

The State Law Office has not indicated whether it will appeal the decision to free Mr Ruto and his co-accused.