The plaintiff has brought this suit pursuant to its mandate under Section 11(1)(j) of the Anti-Corruption and Economic Crimes Act (ACECA). It seeks to recover Kshs 24,999,600.00 from the defendants which it claims was paid to the 1 st defendant by the County Government of Turkana (hereinafter referred to as ‘the government’) for supply of corn soya blend-Unimix for ECD schools (hereinafter referred to as ‘the food’) which was never supplied. According to the amened plaint dated 24-02-2023, each of the defendants was accused of playing a role in the process from procurement to payments. The plaintiff called 13 witnesses while the defendants called a total of 14 witnesses.
The plaintiff’s case
PW1 was Jacob Lolelea Natade who told court that he previously worked as Chief Officer of the government from 22/2/2018 to 2022. His first assignment was Chief Officer of the Ministry of Water Services, Environment and Mineral Resources until August 2019 when he was transferred to the Ministry of Education, Sports and Youth Protection where he worked until 25/2/2020.
He stated that a procurement officer one Henry Epkon brought a requisition for supply of 6,250 corn soya beans (hereinafter referred to as ‘the food’) worth Kshs 27,000,000/=. Each bag was of 25 kgs, estimated at 4000/=. Before he signed, he checked and established that the items in the procurement plan for 2019/2020. He further stated that he also checked and confirmed that the amount was allocated at an estimated amount of Kshs 137,682,674.00 in the budget for 2019/2020. He produced the budget and the procurement plan as exhibits. He added that he signed the requisition after he established that it had been signed by all the other officers.
The witness added that all the procurement procedures were followed including advertisement in Standard Newspaper of 2/01/2020. He identified the tender as number TCG/ESSP/OP/EVA/05/2020 which was properly posted in the IFMIS. Upon closure of the tender, he appointed tender opening and evaluation committees whose duty was to open and check the bidders and the scores. He stated that the chairman of the committee was the 4 th defendant. He further stated that after appointing the committee, he did not take any further action because he was transferred and handed over to the incoming Chief Officer Mrs. Pauline Ekai Lokuruka.
In cross-examination, he said that he was the accounting officer on the material period. He confirmed that there was a process before the committee was appointed and that he had done the procurement plan. He also confirmed that the budget had been approved by the County Assembly and procedures were done in conformity with Public Procurement Regulations. He stated that he did not play any other role after his appointment and that he was not aware of the outcome of the evaluation by the committees. He added that, he knew the 3 rd defendant as an officer in the government and that he did not know of any tender irregularities which made the 4 th defendant be brought to court. He added that if the food was not delivered, there would be risk of children not attending school and enrolment would reduce retention and learning will not take place.
The second witness was Pauline Lokuruka who stated that she served as a Chief Officer in the ministry of Education, Sports and Social Protection from 25 th February 2020 to January 2023. When she took over, one of her tasks was signing of professional report dated 5-03-2020 from Director of Supply Management in regard to sourcing of the food from the 1 st defendant. The report recommended that the 1 st defendant who had won the tender be awarded the contract. She produced the report as an exhibit in the case.
PW2 added that by a letter dated 10-03-2020, the 1 st defendant accepted the tender to supply and a contract to that effect was entered into for the period between 23/3/2020 to 1/4/2021. Supply was to be done upon request. After signing of the contract, the 1 st defendant delivered to the government four times, with the first delivery being between 23/3/2020 to 1/4/2020.
The witness testified that she appointed an inspection and acceptance committee comprised of Samuel Eregae (Chair), Peter Lobali (member), Carlpeters Lodunga (secretary), Omakada Kampala (member), James Chegem (member) and Dedan Korikel (member) and that she confirmed the delivery. The committee prepared all necessary documents and she signed off the of payment of 25,537,500/= on 21-04-2020.
PW2 added that they made another request on 26-10-2020 for 6,500 bags worth Kshs 29,260,000/= which was delivered between 16/1/2021 and 22/1/2021 in presence of 2 nd and 5 th defendants. She appointed a committee made of 4 th , 5 th and 3 rd defendants on 14/1/2021. The committee brought a certificate of inspection and acceptance and the witness physically confirmed the delivery and then signed payment voucher on 5/5/2021 for Ksh. 26,975,000/=.
The witness added that there was another request on 16/3/2021 for supply of 6,024 bags at a price of 4,500/= per bag with total cost of 27,108,000/=. The requisition was raised by the user department and signed by Ernest Ekai (a supply chain assistant), 3 rd defendant, 4 th defendant and Robert Lotaruk (senior procurement officer). She testified further that since the contract was about to lapse, they had to write to the County Attorney to give extension, which extension was given and an addendum to the agreement signed.
She again appointed inspection and acceptance committee for this delivery on 24/5/2021 with 3 rd , 4 th and 5 th defendants as members. She received all the documents from the inspection and acceptance committee including a certificate dated 24/5/2021 signed by the said three defendants. She further testified that she also received the list of full inspection report on 24/5/2021 which confirmed the motor vehicles which delivered the food and a certificate confirming that the food was found good for human consumption.
In addition, she received delivery notes for the supply as follows:
a. Number 0130 dated 17/5/2024 for 1,960 bags delivered by KCY 884Z and signed by Yohana and James Chegem.
b. Number 0140 dated 17/5/2021 for 1,165 bags with motor vehicle as KCJ 795J and signed by the same people who signed number 0130.
c. Number 0141 dated 20/5/2021 for 1165 bags with motor vehicle KCU 332W also signed by Yohana and James Chegem.
d. Number 0142 showing 1,160 bags delivered by motor vehicle KBQ 177H. It was also signed by Yohana and James Chegem.
e. Number 0143 dated 24/5/2021 with quantity of 687 bags delivered by motor vehicle KCC 402G signed by Yohana and James Chegem.
f. Number 0144 dated 4/5/2021 for 687 bags showing motor vehicle KBR 881P signed by Yohana and James.
She claimed that this time round, she did not physically and personally confirm delivery. After receiving the documents, she signed payment voucher for Kshs 24,999,600/= on 15/6/2021. The voucher was supported by the delivery notes, inspection report and counter receipts. She went on to point these documents which are indicated to have been signed by Yohana Lokoyo and the 3 rd defendant. She added that there was a purchase order signed by the procurement officer and AIE holder for 6,024 bags at a price of Kshs 4,950.00 per bag totaling to Kshs 24,999,600/=. She confirmed that the above purchases were in the procurement plan and the approved budget for the financial year.
When she was placed on cross-examination, PW2 confirmed that she left the government in January 2022 and denied that she was guided in writing the statement. She claimed that she signed the agreement and professional opinion because they were on her desk as part of her job. She also confirmed that the most responsive company on both technical and financial bits was the 1 st defendant. She claimed not to be aware of any irregularity on the tender or any dispute on the award.
She restated that she personally confirmed the first and second deliveries and that she relied on the report of the committees to approve the payment voucher. She alleged that she did not confirm the 3 rd delivery because the inspection and acceptance committee composed of senior officers who she did not appoint and she was away on other official duties. She however had no reservations on their work. She added that for the three occasions the 1 st defendant did a very good job. She further stated that she was shown the logbooks of motor vehicles which delivered the food when she went to the EACC offices.
The witness claimed that there was a complaint from the County Assembly about the supply but it was not in writing. She also stated that there was an audit which flagged out this matter but the audit she got was for 2018/019. She stated further that once the food was delivered, it was supposed to leave for schools immediately and when she signed the payment voucher, the food should have gone to school. She added that there was a possibility that the food was delivered by motor vehicles belonging to other persons.
Philemon Poltoi Lowoi was the 3 rd witness who was a registration officer at National Transport and Safety Authority. He told the court that on 28/9/2021, EACC officers sent a letter requesting for copies of records for motor vehicles registration numbers KCB 577A, KBU 890K, KAT 206Q, KBU 503J, KCV 526M, KCS 642S, KCC 402G, KCJ 955J, KBR 881P, KCU 332W, KBQ 177H, KCY 884Z and KCJ 795J. There was also a request for details of ownership of vehicles related to KRA numbers A0065575105, A004716693T, A005471754R, A0054605295 and P051534550E. He provided details as follows;
1. KCY 884Z was a Mercedez Benz was owned by Joseph Kariuki Mwaura.
2. KBQ 177H a Mercedez Benz, a prime mover was owned by Sanrol Ventures Ltd.
3. KCU 322U a Mercedes Benz lorry/truck was owned by Eric Wahome Maina and Gulf Africa Ltd.
4. KCJ 795J, a Mazda Demio Station Wagon was owned by Vicky Patricia Nkatha Mugambi.
5. KCJ 955J a Mercedes Benz prime mover was owned by Eric Wahome Maina.
6. KCU 332W, a Toyota probox was registered to Sostem Kiplagat Tui
7. KCC 402G, a Mercedes Benz prime mover was owned by James Wambugu Kuria and financed by Endeavour Credit Ltd.
8. KBR 881P, a Mercedes Benz prime mover registered to John Mwangi Kariuki.
9. KCJ 183J, KBZ 823V and KCY 431N were registered to Amailo Investment company.
The witness added that a vehicle’s number plate can be removed but they do not allow swapping number plates unless it is through the necessary agencies and that there is a procedure for having two number plates for one vehicle but it is not allowed for civilians.
On cross-examination, that it is not legal to move one number plate from one vehicle to another but there are situations where they issue two number plates for one vehicle mostly for security reasons which is rare and applies in people working for government in certain levels. He however agreed that there were instances of fake number plates which is illegal.
Caroline Mwita working as an assistant engineer with Kenya National Highways Authority was the fourth witness who told the court that they received request from EACC regarding location of some motor vehicles on specific dates. From their system;
a. KCY 884Z was captured on 15/5/2021 at Webuye Weighbridge station Malaba and on 16/5/2021 it was captured in Eldoret virtual weighbridge station.
b. KCJ 795J was not captured in the period of 14 th to 17 th May 2021.
c. KCJ 955J was captured on 14/5/2021 at Ahero virtual station.
d. KBQ 177H was not captured.
e. KCU 332W was also not captured between 17 th to 20 th May 2021.
f. KCC 402G had tickets for the period 20 th to 24 th May 2021 which was not the period of interest.
She added that they have both stationary weigh bridges manned by people and virtual stations and every vehicle passing through the bridges is captured and information relayed to their central system in real time. Some stationary stations are supported by high sensors and if the vehicle is not sensed to be overloaded, they don’t get into the stationary weigh bride. She further stated that permissible weight of truck differs with axle and gross weight limit. The witness added that it is not possible for vehicle to go from Muranga to Lodwar without being captured in a weighbridge.
In cross-examination, the witness told the court that it was possible for one to go to Lodwar from Muranga and avoid the weighbridges. She further stated that it is a criminal offence for a vehicle above 25 tons to evade a weighbridge and admitted that there are cases where vehicles are arrested for evading weighbridges. She was not aware that there are people who evade weighbridge and are not arrested or charged.
The fifth witness, a businessman known as Josephat Kariuki Mwaura, told the court that he owned a super market and transport business. He stated that he received a call from an officer in EACC’s Eldoret offices because his truck registration number KCY 884Z was involved in investigations. He added that he was the one who gives all consents on operation of the business and that his driver was one Karanja Ndung’u and he did not know Simon Waweru.
The witness stated further that, he first heard of the 1 st defendant when he visited EACC’s offices where he was told that it had claimed that it contracted him to transport cargo to Turkana County. He was categorical that whenever he is contracted, he was paid through Mpesa or bank account and never in cash. He averred that it is not possible for his truck to be contracted without his knowledge. He had a tracker which monitors all his trucks wherever they are.
The witness testified that his truck was on 16/5/2021 dispatched in the morning to go to Eldoret to pick a fertilizer cargo destined to a company in Uganda. The truck was loaded on 17/5/2021 and released from the factory on 18/5/2021. It came back from Uganda on 25/5/2021. It used Ngara - Eldoret - Webuye – Malaba – Uganda route.
When he was cross-examined, PW5 stated that he knew the movements of all his trucks through a tracking device but he did not have tracking logs in court. he added that the truck was on the material being driven by Sammy Kenanga Ndungu who was still working with him. He further testified that his truck was contracted to carry fertilizer from a company called Baraka Fertilizers. The vehicle left for Uganda on 18/5/2021 and he was not aware that Sammy Ndungu knows one Henry Kidiga.
He claimed that delivery note bearing motor vehicle registration number KCY 884Z was a forgery and misleading. He admitted that, sometimes weighbridges are off and in such cases motor vehicles can pass without being recorded. His driver was not interviewed or summoned to testify. He added that it is practically impossible to get the vehicle at Malaba then the following morning it is empty and in Lodwar. It is also not possible to have the vehicle from Eldoret to Lodwar and come back the same day. He also stated that his driver has never been involved in what they call “squad” as a big truck is never involved in those squads.
PW6 was Caroline Wanjiru Mbugua a business woman in transport business since 2020. She informed the court that she was informed by the EACC that her truck registration number KBQ 177H carried the food from Maragwa to Lodwar and they wanted to confirm whether her truck transported it in May 2021. She denied that saying that, her truck had broken down between January and July 2021 and there was no way it could have left without her knowledge because she had parked it where she lived.
She told the court in cross-examination that the vehicle was registered to Sanrol Ventures Ltd in which she was the sole director. She added that she used brokers who would call her when there was business. She further stated that she did one trip for the government and was paid through Mpesa but she was told by the investigating officer that the record showed that she did two trips. She stated that she didn’t have any relationship with the clients as she dealt through brokers. She could not remember the broker who did the business in question with the 1 st defendant. She also claimed that she had a tracking device for the truck but investigators did not ask for it.
PW7 was one Paul Nyotu Gateru and a driver who testified that he transported food from Equatorial Factory in Muranga to Turkana on 18/1/2021 using motor vehicle registration number KCU 322U owned by Eric Wahome and never did any other transport for the same product. He added that on 20/5/2021 he was transporting stones from Ndarugo near Thika to Kitale. He claimed that no one else has ever driven that vehicle.
When put on cross-examination, PW7 told the court that he did not to have documents to prove that he was employed by the owner of the truck and that he was paid per trip and not as a permanent employee. When there was no trip, he would stay in the vehicle. He added that on 18/1/2021, he was called by the owner of the vehicle with instructions to go and receive consignment which was loaded on the same day and left Muranga in the evening. The consignment was 1120 bags. The witness stated that he used Muranga-Kenol-Ruiru By-Bass-Limuru-Mai Mahiu-Nakuru-Eldoret-Kitale-Kapenguria-Turkana route spending one day between Eldoret and Turkana.
Francis Esimit Edapal who previously worked with Turkana County Government as a Deputy Director Supply Chain Management Resources from February 2016 to May 2021 was the eighth witness. He told the court that he received requisition from department of education on 31/12/2019 which was procuring 6,250 bags of corn soya porridge of 25 kilograms each valued at Kshs. 27,000,000.00. The requisition had been approved by the Chief Officer. He confirmed that there was budget and procurement plan. The amount in the proposed budget was 158,000,000/- and thereafter Kshs 137,682,664/= in supplementary budget.
He went on to give the process the procurement went through which he confirmed to have been lawful and procedural with the final recommendation and award going to the 1 st defendant at a cost of Kshs 4,150/- per bag. He testified that he prepared a professional opinion on 6/3/2020 and submitted it to the accounting officer to award. Framework agreement which was valid for one year was finally signed between the government and the 1 st defendant on 23/3/2020. He pointed out that the contract did not have a provision for extension and if there was need for extension, the accounting officer would have appointed an evaluation committee to look into the extension. The witness added that the order to supply the food he interacted with was made on 1/3/2020 but he signed it on 23/3/2020.
In cross-examination, the witness stated that there was no provision for extension of the framework agreement but there are times when there is need for extension of framework agreement depending on the need of the user in which case, the accounting officer can extend the contract depending on the justification given. He added that the supplier or contractor can also initiate the process of extension. He added that delays and mutual desire by contractors to complete obligations can cause the need for extension which can only work if both parties sign the extension.
The witness added that in case of an extension there are no new terms and it must be for a specific period. He added that he was not aware of any addendum to the contract dated 23-03-2020. He was not aware of any complaint that the tender was awarded irregularly or any claim that the 1 st defendant influenced the award. He added that he wrote his professional opinion without influence and was not prompted by anyone and he was not aware of any irregularity and up to the level of award, the process was undertaken as per the law. He had no role to play in the delivery.
George Gate Kagema, a driver and a business man testified that there was a time he transported 1120 bags of flour of 25 kilograms each from Equatorial Nuts Processors Limited (hereinafter referred to as Equatorial) in Muranga to Lodwar using motor vehicle registration number KCC 402G owned by James Wambugu Kuria. This was 16 th January 2021 and he has never been back there. He stated that he worked with the motor vehicle since 2019 until 2024 when it was sold and between that period no other person had driven it and he was the one who kept the key. He denied transporting the food on 24/5/2021 because he was in Tanzania where he had gone to carry cargo at a place called Kahama using the said motor.
In cross-examination he confirmed not to have any document to prove the employment neither did he have his driving licence in court. He insisted that he never went back to Turkana after January 2021.
Abraham Misoi, a mechanical engineer working with the County Government of Uasin Gishu testified as the 10 th witness. He told the court that, he was summoned to the plaintiff’s offices in Eldoret to give technical support in respect of some vehicles. He was shown inspection reports from Ministry of Public Health and Sanitation of the government and copies of records for some motor vehicles which were said to have been used to transport the food supplied by the 1 st defendant.
He was to establish whether the vehicles which were said to have transported the food had capacity to the carry weight indicated against each. In his opinion, KCJ 795J, a station wagon with a ton weight of 990 kgs could not possibly carry 29 tons to Turkana County. The 1165 bags of 25 kgs each translated to be 29.2 tons and from the technical view, the vehicle could not carry that load due to its engine and load capacity.
Motor vehicle KCU 332W which was also a station wagon was a Toyota probox of 1490 cc with ton weight of 1,100 kilograms and load capacity of 525 kilograms. The vehicle could not carry 1165 bags of 25 kilograms each which was equivalent to 29.2 tons because of its load capacity. The capacity of the bags could be transported by a truck with 300 HP and 6000 cc.
In cross-examination, the witness stated that based on his experience, he was a mechanical engineer and an expert in mechanical and production engineering. He stated further that the plaintiff’s officers did not come to him directly but to the County Secretary who referred them to him. He based his report on food inspection report and records from NTSA to generate his report and did not physically inspect the motor vehicles.
The 11 th witness was Joseph Mutisya Makau a food scientist working with Equatorial Nuts Processing Ltd as a sales representative. He told the court that the company did business with the 1 st defendant from March 2020 to September 2021. Between that period, the 1 st defendant did four orders. The first order was on 4/3/2020 through Mr. Peter Elim for 6,250 bags worth Kshs 13,359,375 /- . The order was collected by several trucks sent by the 1 st defendant between 21/3/2020 and 31/3/2020. The order was paid in full through bank transfers.
The second order for 6,500 bags worth 13,975,000/= came on 30/12/2020. It was collected between 14/1/2021 and 21/1/2021 which was paid in full. It was collected by several trucks sent by the 1 st defendant. The 3 rd order was placed on 6/4/2021 through LPO S/No. AM0626 via an email. The email came from Peter Elim through inforamailo@gmail.com to mmakanjoseph@gmail.com and joseph.makau@equatorialnuts.co.ke . The order was for 2,450 bags worth Kshs 5,267,500/=. Payment was received and the 1 st defendant sent trucks registration numbers KCY 323N which was loaded with 90 bags, KCJ 955J loaded with 1200 bags and KCH 207Y loaded with 1160 bags to collect the consignment on 29/5/2021.
The witness added that there was a 4 th and last order which was made on 18/8/2021 for 6,807 bags worth Kshs 16,336,800.00. It was collected between 8/9/2021 and 22/9/2021. The total collection was 6,810 bags with the extra 3 bags being a form of appreciation for personal use.
In cross-examination, he did not have the letter from plaintiff requesting for the documents he had produced in court but insisted that the documents were not with plaintiff illegally although there is nowhere its representative signed for collection of the documents. Similarly, there was no bank statement showing the payments neither was there acknowledgement for the payment in court.
Pressed further, PW11 stated that he was personally based in the Nairobi office and he was not there when the consignments were being collected and he could not tell the type of vehicles which collected them. He also could not tell where the consignments were being delivered to as their business ended with the delivery. He added that they are not the only producers of the product and it is not a must that any potential customer buys from them.
The plaintiff’s twelfth witness one John Kahiga Mbare working with Equity Bank as operation Manager in Lodwar since January 2022 told the court that the bank received a letter dated 24/8/2021 from the plaintiff and orders in miscellaneous application number E021 of 2021 asking for investigations on account numbers 0990260776292, 1090195247722, 0990193569145 and 0570193406327 held in their bank. These accounts were held by the 1 st defendant, Ekeno Samuel Edapal, the 8 th defendant and the 7 th defendants respectively.
Upon receipt of the orders, they provided account opening documents and statement for provide account opening documents and statements. Account number 0990260776292 was opened by Elim Peter Epagan and Samuel Ekeno Edagal on 19/3/2013. The two were directors but there was another director known as Esther Lokai Elim. At the point of opening, the mandate was all to sign but as at 24/3/2022 they had Elim Peter Epagan (the 7 th defendant) as the sole signatory.
The witness added that as at 31/7/2017 the account holders had applied for an online platform called Eazzybiz. The persons who signed for onboarding were Elim Peter and Peter Edapal who were directors. Elim Peter was the one who had initiator/approver rights was.
David Kaloki Mutua was the thirteenth and the last witness for the plaintiff. He was the investigating officer in this matter. In addition to repeating what the other witness said and provided to him, he told the court that, the commission received allegations that the 1 st defendant which was owned by staff working with the government has been trading with the government contrary to law contrary to the law on conflict of interest.
Upon receipt of the complaint, the Commission requested for documents for payments made to the company and filed a miscellaneous application for warrants in respect of bank account held by the company. From the bank account statements supplied by Equity Bank, it was revealed that the company was trading with the government and one of its directors was working with the government.
He added that records in the Business Registration Services showed the 1 st defendant was incorporated as a private limited liability company on 18/2/2013 under certificate number CPR/2013/94837. At the time of incorporation, it had Elim Peter Epagan with 300 shares as a director and shareholder, Samuel Ekeno Edapal as a director and shareholder with 300 shares, Esther Lokai Elim a shareholder with 200 shares and Ekorot Emmanuel Endapal as shareholder with 200 shares. Later, there were changes of directorship as follows: -
a. On 11/4/2019 Samuel Ekono Edapal transferred 300 shares to Peter Elim Epagan.
b. On 11/4/2019 Esther Elim transferred 100 shares to Emmanuel Endapal.
c. On 12/4/2019, Samuel Ekano Edapal and Esther Lokai Elim resigned as directors.
d. On 29/9/2019, Elim Peter resigned as director and forfeited his 700 shares to the company.
As at 16/02/2022, the directors and shareholding of the 1 st defendant were as follows: -
a. Peter Ekorot Endapal the 8 th defendant with 200 shares and also a director.
b. Rebecca Adorio Ekerot with 300 shares and also a director.
c. Ekotot Endapal Magdalene with 250 shares and also a director.
d. Ekorot Lomoe Lucy as a director and shareholder with 250 shares.
He added that Esther Lokai Elim (6 th defendant) is wife to Elim Peter Epagan (the 7 th defendant) and also daughter in law to Peter Ekorot Endapal (the 8 th defendant). He testified that this information is in a form received from the government where the 6 th defendant filled her particulars of next of kin. She also provided evidence of marriage to indicate that she was wife of Elim Peter Epagan. He produced the marriage certificate and the next of kin form as exhibits 48 and 49.
Upon investigations the witness established that the 1 st defendant participated in a tender to supply the food. It was awarded the contract on 23/3/2020 for one year ending on 30/4/2021. There was an addendum to the agreement prepared on 8/2/2021 and signed between the two parties. Amailo was provided with four LPOs. In the 3 rd LPO (number 703), the 1 st defendant was to supply 6,024 bags to be delivered at Lodwar the County Headquarters.
He added that delivery notes and counter receipts vouchers (hereinafter referred to as ‘form S13) were the proof of supply and the documents given to him by the government indicated that delivery was done between 17/5/2021 and 24/5/2021. From the documents, he enquired on where the purchase was done by 1 st defendant and based on what 1 st defendant provided as its suppliers, he established it was Equatorial. He proceeded to enquire from Equatorial whether actually the 1 st defendant ordered for the food. He stated that he was informed that on 6/4/2021 the 1 st defendant ordered for 2,450 bags and established that it collected the food using two trucks and one pick up double cabin on 23/5/2021 indicating that they delivered the same
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The plaintiff’s case
PW1 was Jacob Lolelea Natade who told court that he previously worked as Chief Officer of the government from 22/2/2018 to 2022. His first assignment was Chief Officer of the Ministry of Water Services, Environment and Mineral Resources until August 2019 when he was transferred to the Ministry of Education, Sports and Youth Protection where he worked until 25/2/2020.
He stated that a procurement officer one Henry Epkon brought a requisition for supply of 6,250 corn soya beans (hereinafter referred to as ‘the food’) worth Kshs 27,000,000/=. Each bag was of 25 kgs, estimated at 4000/=. Before he signed, he checked and established that the items in the procurement plan for 2019/2020. He further stated that he also checked and confirmed that the amount was allocated at an estimated amount of Kshs 137,682,674.00 in the budget for 2019/2020. He produced the budget and the procurement plan as exhibits. He added that he signed the requisition after he established that it had been signed by all the other officers.
The witness added that all the procurement procedures were followed including advertisement in Standard Newspaper of 2/01/2020. He identified the tender as number TCG/ESSP/OP/EVA/05/2020 which was properly posted in the IFMIS. Upon closure of the tender, he appointed tender opening and evaluation committees whose duty was to open and check the bidders and the scores. He stated that the chairman of the committee was the 4 th defendant. He further stated that after appointing the committee, he did not take any further action because he was transferred and handed over to the incoming Chief Officer Mrs. Pauline Ekai Lokuruka.
In cross-examination, he said that he was the accounting officer on the material period. He confirmed that there was a process before the committee was appointed and that he had done the procurement plan. He also confirmed that the budget had been approved by the County Assembly and procedures were done in conformity with Public Procurement Regulations. He stated that he did not play any other role after his appointment and that he was not aware of the outcome of the evaluation by the committees. He added that, he knew the 3 rd defendant as an officer in the government and that he did not know of any tender irregularities which made the 4 th defendant be brought to court. He added that if the food was not delivered, there would be risk of children not attending school and enrolment would reduce retention and learning will not take place.
The second witness was Pauline Lokuruka who stated that she served as a Chief Officer in the ministry of Education, Sports and Social Protection from 25 th February 2020 to January 2023. When she took over, one of her tasks was signing of professional report dated 5-03-2020 from Director of Supply Management in regard to sourcing of the food from the 1 st defendant. The report recommended that the 1 st defendant who had won the tender be awarded the contract. She produced the report as an exhibit in the case.
PW2 added that by a letter dated 10-03-2020, the 1 st defendant accepted the tender to supply and a contract to that effect was entered into for the period between 23/3/2020 to 1/4/2021. Supply was to be done upon request. After signing of the contract, the 1 st defendant delivered to the government four times, with the first delivery being between 23/3/2020 to 1/4/2020.
The witness testified that she appointed an inspection and acceptance committee comprised of Samuel Eregae (Chair), Peter Lobali (member), Carlpeters Lodunga (secretary), Omakada Kampala (member), James Chegem (member) and Dedan Korikel (member) and that she confirmed the delivery. The committee prepared all necessary documents and she signed off the of payment of 25,537,500/= on 21-04-2020.
PW2 added that they made another request on 26-10-2020 for 6,500 bags worth Kshs 29,260,000/= which was delivered between 16/1/2021 and 22/1/2021 in presence of 2 nd and 5 th defendants. She appointed a committee made of 4 th , 5 th and 3 rd defendants on 14/1/2021. The committee brought a certificate of inspection and acceptance and the witness physically confirmed the delivery and then signed payment voucher on 5/5/2021 for Ksh. 26,975,000/=.
The witness added that there was another request on 16/3/2021 for supply of 6,024 bags at a price of 4,500/= per bag with total cost of 27,108,000/=. The requisition was raised by the user department and signed by Ernest Ekai (a supply chain assistant), 3 rd defendant, 4 th defendant and Robert Lotaruk (senior procurement officer). She testified further that since the contract was about to lapse, they had to write to the County Attorney to give extension, which extension was given and an addendum to the agreement signed.
She again appointed inspection and acceptance committee for this delivery on 24/5/2021 with 3 rd , 4 th and 5 th defendants as members. She received all the documents from the inspection and acceptance committee including a certificate dated 24/5/2021 signed by the said three defendants. She further testified that she also received the list of full inspection report on 24/5/2021 which confirmed the motor vehicles which delivered the food and a certificate confirming that the food was found good for human consumption.
In addition, she received delivery notes for the supply as follows:
a. Number 0130 dated 17/5/2024 for 1,960 bags delivered by KCY 884Z and signed by Yohana and James Chegem.
b. Number 0140 dated 17/5/2021 for 1,165 bags with motor vehicle as KCJ 795J and signed by the same people who signed number 0130.
c. Number 0141 dated 20/5/2021 for 1165 bags with motor vehicle KCU 332W also signed by Yohana and James Chegem.
d. Number 0142 showing 1,160 bags delivered by motor vehicle KBQ 177H. It was also signed by Yohana and James Chegem.
e. Number 0143 dated 24/5/2021 with quantity of 687 bags delivered by motor vehicle KCC 402G signed by Yohana and James Chegem.
f. Number 0144 dated 4/5/2021 for 687 bags showing motor vehicle KBR 881P signed by Yohana and James.
She claimed that this time round, she did not physically and personally confirm delivery. After receiving the documents, she signed payment voucher for Kshs 24,999,600/= on 15/6/2021. The voucher was supported by the delivery notes, inspection report and counter receipts. She went on to point these documents which are indicated to have been signed by Yohana Lokoyo and the 3 rd defendant. She added that there was a purchase order signed by the procurement officer and AIE holder for 6,024 bags at a price of Kshs 4,950.00 per bag totaling to Kshs 24,999,600/=. She confirmed that the above purchases were in the procurement plan and the approved budget for the financial year.
When she was placed on cross-examination, PW2 confirmed that she left the government in January 2022 and denied that she was guided in writing the statement. She claimed that she signed the agreement and professional opinion because they were on her desk as part of her job. She also confirmed that the most responsive company on both technical and financial bits was the 1 st defendant. She claimed not to be aware of any irregularity on the tender or any dispute on the award.
She restated that she personally confirmed the first and second deliveries and that she relied on the report of the committees to approve the payment voucher. She alleged that she did not confirm the 3 rd delivery because the inspection and acceptance committee composed of senior officers who she did not appoint and she was away on other official duties. She however had no reservations on their work. She added that for the three occasions the 1 st defendant did a very good job. She further stated that she was shown the logbooks of motor vehicles which delivered the food when she went to the EACC offices.
The witness claimed that there was a complaint from the County Assembly about the supply but it was not in writing. She also stated that there was an audit which flagged out this matter but the audit she got was for 2018/019. She stated further that once the food was delivered, it was supposed to leave for schools immediately and when she signed the payment voucher, the food should have gone to school. She added that there was a possibility that the food was delivered by motor vehicles belonging to other persons.
Philemon Poltoi Lowoi was the 3 rd witness who was a registration officer at National Transport and Safety Authority. He told the court that on 28/9/2021, EACC officers sent a letter requesting for copies of records for motor vehicles registration numbers KCB 577A, KBU 890K, KAT 206Q, KBU 503J, KCV 526M, KCS 642S, KCC 402G, KCJ 955J, KBR 881P, KCU 332W, KBQ 177H, KCY 884Z and KCJ 795J. There was also a request for details of ownership of vehicles related to KRA numbers A0065575105, A004716693T, A005471754R, A0054605295 and P051534550E. He provided details as follows;
1. KCY 884Z was a Mercedez Benz was owned by Joseph Kariuki Mwaura.
2. KBQ 177H a Mercedez Benz, a prime mover was owned by Sanrol Ventures Ltd.
3. KCU 322U a Mercedes Benz lorry/truck was owned by Eric Wahome Maina and Gulf Africa Ltd.
4. KCJ 795J, a Mazda Demio Station Wagon was owned by Vicky Patricia Nkatha Mugambi.
5. KCJ 955J a Mercedes Benz prime mover was owned by Eric Wahome Maina.
6. KCU 332W, a Toyota probox was registered to Sostem Kiplagat Tui
7. KCC 402G, a Mercedes Benz prime mover was owned by James Wambugu Kuria and financed by Endeavour Credit Ltd.
8. KBR 881P, a Mercedes Benz prime mover registered to John Mwangi Kariuki.
9. KCJ 183J, KBZ 823V and KCY 431N were registered to Amailo Investment company.
The witness added that a vehicle’s number plate can be removed but they do not allow swapping number plates unless it is through the necessary agencies and that there is a procedure for having two number plates for one vehicle but it is not allowed for civilians.
On cross-examination, that it is not legal to move one number plate from one vehicle to another but there are situations where they issue two number plates for one vehicle mostly for security reasons which is rare and applies in people working for government in certain levels. He however agreed that there were instances of fake number plates which is illegal.
Caroline Mwita working as an assistant engineer with Kenya National Highways Authority was the fourth witness who told the court that they received request from EACC regarding location of some motor vehicles on specific dates. From their system;
a. KCY 884Z was captured on 15/5/2021 at Webuye Weighbridge station Malaba and on 16/5/2021 it was captured in Eldoret virtual weighbridge station.
b. KCJ 795J was not captured in the period of 14 th to 17 th May 2021.
c. KCJ 955J was captured on 14/5/2021 at Ahero virtual station.
d. KBQ 177H was not captured.
e. KCU 332W was also not captured between 17 th to 20 th May 2021.
f. KCC 402G had tickets for the period 20 th to 24 th May 2021 which was not the period of interest.
She added that they have both stationary weigh bridges manned by people and virtual stations and every vehicle passing through the bridges is captured and information relayed to their central system in real time. Some stationary stations are supported by high sensors and if the vehicle is not sensed to be overloaded, they don’t get into the stationary weigh bride. She further stated that permissible weight of truck differs with axle and gross weight limit. The witness added that it is not possible for vehicle to go from Muranga to Lodwar without being captured in a weighbridge.
In cross-examination, the witness told the court that it was possible for one to go to Lodwar from Muranga and avoid the weighbridges. She further stated that it is a criminal offence for a vehicle above 25 tons to evade a weighbridge and admitted that there are cases where vehicles are arrested for evading weighbridges. She was not aware that there are people who evade weighbridge and are not arrested or charged.
The fifth witness, a businessman known as Josephat Kariuki Mwaura, told the court that he owned a super market and transport business. He stated that he received a call from an officer in EACC’s Eldoret offices because his truck registration number KCY 884Z was involved in investigations. He added that he was the one who gives all consents on operation of the business and that his driver was one Karanja Ndung’u and he did not know Simon Waweru.
The witness stated further that, he first heard of the 1 st defendant when he visited EACC’s offices where he was told that it had claimed that it contracted him to transport cargo to Turkana County. He was categorical that whenever he is contracted, he was paid through Mpesa or bank account and never in cash. He averred that it is not possible for his truck to be contracted without his knowledge. He had a tracker which monitors all his trucks wherever they are.
The witness testified that his truck was on 16/5/2021 dispatched in the morning to go to Eldoret to pick a fertilizer cargo destined to a company in Uganda. The truck was loaded on 17/5/2021 and released from the factory on 18/5/2021. It came back from Uganda on 25/5/2021. It used Ngara - Eldoret - Webuye – Malaba – Uganda route.
When he was cross-examined, PW5 stated that he knew the movements of all his trucks through a tracking device but he did not have tracking logs in court. he added that the truck was on the material being driven by Sammy Kenanga Ndungu who was still working with him. He further testified that his truck was contracted to carry fertilizer from a company called Baraka Fertilizers. The vehicle left for Uganda on 18/5/2021 and he was not aware that Sammy Ndungu knows one Henry Kidiga.
He claimed that delivery note bearing motor vehicle registration number KCY 884Z was a forgery and misleading. He admitted that, sometimes weighbridges are off and in such cases motor vehicles can pass without being recorded. His driver was not interviewed or summoned to testify. He added that it is practically impossible to get the vehicle at Malaba then the following morning it is empty and in Lodwar. It is also not possible to have the vehicle from Eldoret to Lodwar and come back the same day. He also stated that his driver has never been involved in what they call “squad” as a big truck is never involved in those squads.
PW6 was Caroline Wanjiru Mbugua a business woman in transport business since 2020. She informed the court that she was informed by the EACC that her truck registration number KBQ 177H carried the food from Maragwa to Lodwar and they wanted to confirm whether her truck transported it in May 2021. She denied that saying that, her truck had broken down between January and July 2021 and there was no way it could have left without her knowledge because she had parked it where she lived.
She told the court in cross-examination that the vehicle was registered to Sanrol Ventures Ltd in which she was the sole director. She added that she used brokers who would call her when there was business. She further stated that she did one trip for the government and was paid through Mpesa but she was told by the investigating officer that the record showed that she did two trips. She stated that she didn’t have any relationship with the clients as she dealt through brokers. She could not remember the broker who did the business in question with the 1 st defendant. She also claimed that she had a tracking device for the truck but investigators did not ask for it.
PW7 was one Paul Nyotu Gateru and a driver who testified that he transported food from Equatorial Factory in Muranga to Turkana on 18/1/2021 using motor vehicle registration number KCU 322U owned by Eric Wahome and never did any other transport for the same product. He added that on 20/5/2021 he was transporting stones from Ndarugo near Thika to Kitale. He claimed that no one else has ever driven that vehicle.
When put on cross-examination, PW7 told the court that he did not to have documents to prove that he was employed by the owner of the truck and that he was paid per trip and not as a permanent employee. When there was no trip, he would stay in the vehicle. He added that on 18/1/2021, he was called by the owner of the vehicle with instructions to go and receive consignment which was loaded on the same day and left Muranga in the evening. The consignment was 1120 bags. The witness stated that he used Muranga-Kenol-Ruiru By-Bass-Limuru-Mai Mahiu-Nakuru-Eldoret-Kitale-Kapenguria-Turkana route spending one day between Eldoret and Turkana.
Francis Esimit Edapal who previously worked with Turkana County Government as a Deputy Director Supply Chain Management Resources from February 2016 to May 2021 was the eighth witness. He told the court that he received requisition from department of education on 31/12/2019 which was procuring 6,250 bags of corn soya porridge of 25 kilograms each valued at Kshs. 27,000,000.00. The requisition had been approved by the Chief Officer. He confirmed that there was budget and procurement plan. The amount in the proposed budget was 158,000,000/- and thereafter Kshs 137,682,664/= in supplementary budget.
He went on to give the process the procurement went through which he confirmed to have been lawful and procedural with the final recommendation and award going to the 1 st defendant at a cost of Kshs 4,150/- per bag. He testified that he prepared a professional opinion on 6/3/2020 and submitted it to the accounting officer to award. Framework agreement which was valid for one year was finally signed between the government and the 1 st defendant on 23/3/2020. He pointed out that the contract did not have a provision for extension and if there was need for extension, the accounting officer would have appointed an evaluation committee to look into the extension. The witness added that the order to supply the food he interacted with was made on 1/3/2020 but he signed it on 23/3/2020.
In cross-examination, the witness stated that there was no provision for extension of the framework agreement but there are times when there is need for extension of framework agreement depending on the need of the user in which case, the accounting officer can extend the contract depending on the justification given. He added that the supplier or contractor can also initiate the process of extension. He added that delays and mutual desire by contractors to complete obligations can cause the need for extension which can only work if both parties sign the extension.
The witness added that in case of an extension there are no new terms and it must be for a specific period. He added that he was not aware of any addendum to the contract dated 23-03-2020. He was not aware of any complaint that the tender was awarded irregularly or any claim that the 1 st defendant influenced the award. He added that he wrote his professional opinion without influence and was not prompted by anyone and he was not aware of any irregularity and up to the level of award, the process was undertaken as per the law. He had no role to play in the delivery.
George Gate Kagema, a driver and a business man testified that there was a time he transported 1120 bags of flour of 25 kilograms each from Equatorial Nuts Processors Limited (hereinafter referred to as Equatorial) in Muranga to Lodwar using motor vehicle registration number KCC 402G owned by James Wambugu Kuria. This was 16 th January 2021 and he has never been back there. He stated that he worked with the motor vehicle since 2019 until 2024 when it was sold and between that period no other person had driven it and he was the one who kept the key. He denied transporting the food on 24/5/2021 because he was in Tanzania where he had gone to carry cargo at a place called Kahama using the said motor.
In cross-examination he confirmed not to have any document to prove the employment neither did he have his driving licence in court. He insisted that he never went back to Turkana after January 2021.
Abraham Misoi, a mechanical engineer working with the County Government of Uasin Gishu testified as the 10 th witness. He told the court that, he was summoned to the plaintiff’s offices in Eldoret to give technical support in respect of some vehicles. He was shown inspection reports from Ministry of Public Health and Sanitation of the government and copies of records for some motor vehicles which were said to have been used to transport the food supplied by the 1 st defendant.
He was to establish whether the vehicles which were said to have transported the food had capacity to the carry weight indicated against each. In his opinion, KCJ 795J, a station wagon with a ton weight of 990 kgs could not possibly carry 29 tons to Turkana County. The 1165 bags of 25 kgs each translated to be 29.2 tons and from the technical view, the vehicle could not carry that load due to its engine and load capacity.
Motor vehicle KCU 332W which was also a station wagon was a Toyota probox of 1490 cc with ton weight of 1,100 kilograms and load capacity of 525 kilograms. The vehicle could not carry 1165 bags of 25 kilograms each which was equivalent to 29.2 tons because of its load capacity. The capacity of the bags could be transported by a truck with 300 HP and 6000 cc.
In cross-examination, the witness stated that based on his experience, he was a mechanical engineer and an expert in mechanical and production engineering. He stated further that the plaintiff’s officers did not come to him directly but to the County Secretary who referred them to him. He based his report on food inspection report and records from NTSA to generate his report and did not physically inspect the motor vehicles.
The 11 th witness was Joseph Mutisya Makau a food scientist working with Equatorial Nuts Processing Ltd as a sales representative. He told the court that the company did business with the 1 st defendant from March 2020 to September 2021. Between that period, the 1 st defendant did four orders. The first order was on 4/3/2020 through Mr. Peter Elim for 6,250 bags worth Kshs 13,359,375 /- . The order was collected by several trucks sent by the 1 st defendant between 21/3/2020 and 31/3/2020. The order was paid in full through bank transfers.
The second order for 6,500 bags worth 13,975,000/= came on 30/12/2020. It was collected between 14/1/2021 and 21/1/2021 which was paid in full. It was collected by several trucks sent by the 1 st defendant. The 3 rd order was placed on 6/4/2021 through LPO S/No. AM0626 via an email. The email came from Peter Elim through inforamailo@gmail.com to mmakanjoseph@gmail.com and joseph.makau@equatorialnuts.co.ke . The order was for 2,450 bags worth Kshs 5,267,500/=. Payment was received and the 1 st defendant sent trucks registration numbers KCY 323N which was loaded with 90 bags, KCJ 955J loaded with 1200 bags and KCH 207Y loaded with 1160 bags to collect the consignment on 29/5/2021.
The witness added that there was a 4 th and last order which was made on 18/8/2021 for 6,807 bags worth Kshs 16,336,800.00. It was collected between 8/9/2021 and 22/9/2021. The total collection was 6,810 bags with the extra 3 bags being a form of appreciation for personal use.
In cross-examination, he did not have the letter from plaintiff requesting for the documents he had produced in court but insisted that the documents were not with plaintiff illegally although there is nowhere its representative signed for collection of the documents. Similarly, there was no bank statement showing the payments neither was there acknowledgement for the payment in court.
Pressed further, PW11 stated that he was personally based in the Nairobi office and he was not there when the consignments were being collected and he could not tell the type of vehicles which collected them. He also could not tell where the consignments were being delivered to as their business ended with the delivery. He added that they are not the only producers of the product and it is not a must that any potential customer buys from them.
The plaintiff’s twelfth witness one John Kahiga Mbare working with Equity Bank as operation Manager in Lodwar since January 2022 told the court that the bank received a letter dated 24/8/2021 from the plaintiff and orders in miscellaneous application number E021 of 2021 asking for investigations on account numbers 0990260776292, 1090195247722, 0990193569145 and 0570193406327 held in their bank. These accounts were held by the 1 st defendant, Ekeno Samuel Edapal, the 8 th defendant and the 7 th defendants respectively.
Upon receipt of the orders, they provided account opening documents and statement for provide account opening documents and statements. Account number 0990260776292 was opened by Elim Peter Epagan and Samuel Ekeno Edagal on 19/3/2013. The two were directors but there was another director known as Esther Lokai Elim. At the point of opening, the mandate was all to sign but as at 24/3/2022 they had Elim Peter Epagan (the 7 th defendant) as the sole signatory.
The witness added that as at 31/7/2017 the account holders had applied for an online platform called Eazzybiz. The persons who signed for onboarding were Elim Peter and Peter Edapal who were directors. Elim Peter was the one who had initiator/approver rights was.
David Kaloki Mutua was the thirteenth and the last witness for the plaintiff. He was the investigating officer in this matter. In addition to repeating what the other witness said and provided to him, he told the court that, the commission received allegations that the 1 st defendant which was owned by staff working with the government has been trading with the government contrary to law contrary to the law on conflict of interest.
Upon receipt of the complaint, the Commission requested for documents for payments made to the company and filed a miscellaneous application for warrants in respect of bank account held by the company. From the bank account statements supplied by Equity Bank, it was revealed that the company was trading with the government and one of its directors was working with the government.
He added that records in the Business Registration Services showed the 1 st defendant was incorporated as a private limited liability company on 18/2/2013 under certificate number CPR/2013/94837. At the time of incorporation, it had Elim Peter Epagan with 300 shares as a director and shareholder, Samuel Ekeno Edapal as a director and shareholder with 300 shares, Esther Lokai Elim a shareholder with 200 shares and Ekorot Emmanuel Endapal as shareholder with 200 shares. Later, there were changes of directorship as follows: -
a. On 11/4/2019 Samuel Ekono Edapal transferred 300 shares to Peter Elim Epagan.
b. On 11/4/2019 Esther Elim transferred 100 shares to Emmanuel Endapal.
c. On 12/4/2019, Samuel Ekano Edapal and Esther Lokai Elim resigned as directors.
d. On 29/9/2019, Elim Peter resigned as director and forfeited his 700 shares to the company.
As at 16/02/2022, the directors and shareholding of the 1 st defendant were as follows: -
a. Peter Ekorot Endapal the 8 th defendant with 200 shares and also a director.
b. Rebecca Adorio Ekerot with 300 shares and also a director.
c. Ekotot Endapal Magdalene with 250 shares and also a director.
d. Ekorot Lomoe Lucy as a director and shareholder with 250 shares.
He added that Esther Lokai Elim (6 th defendant) is wife to Elim Peter Epagan (the 7 th defendant) and also daughter in law to Peter Ekorot Endapal (the 8 th defendant). He testified that this information is in a form received from the government where the 6 th defendant filled her particulars of next of kin. She also provided evidence of marriage to indicate that she was wife of Elim Peter Epagan. He produced the marriage certificate and the next of kin form as exhibits 48 and 49.
Upon investigations the witness established that the 1 st defendant participated in a tender to supply the food. It was awarded the contract on 23/3/2020 for one year ending on 30/4/2021. There was an addendum to the agreement prepared on 8/2/2021 and signed between the two parties. Amailo was provided with four LPOs. In the 3 rd LPO (number 703), the 1 st defendant was to supply 6,024 bags to be delivered at Lodwar the County Headquarters.
He added that delivery notes and counter receipts vouchers (hereinafter referred to as ‘form S13) were the proof of supply and the documents given to him by the government indicated that delivery was done between 17/5/2021 and 24/5/2021. From the documents, he enquired on where the purchase was done by 1 st defendant and based on what 1 st defendant provided as its suppliers, he established it was Equatorial. He proceeded to enquire from Equatorial whether actually the 1 st defendant ordered for the food. He stated that he was informed that on 6/4/2021 the 1 st defendant ordered for 2,450 bags and established that it collected the food using two trucks and one pick up double cabin on 23/5/2021 indicating that they delivered the same
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