1.The Commission instituted this suit vide an amended Plaint dated 1st November 2018 seeking the following orders;
a) A declaration that the acquisition of Kshs 8,724,137.95/= by the 1st Defendant on 01/07/2015 and 24/09/2015 respectively from the County Government of Kilifi in respect of Tender No KCG/392/2014/2015 for the procurement of for upgrading of data center and security upgrade of cyber room configuration was unconstitutional, fraudulent, unlawful and corruptly irregular.
b) A pecuniary claim of Kshs 22,675,778.00/= from the Defendants which at the time of filing the suit was been assessed as follows;
i. A pecuniary claim of Kshs 11,337,889.00/= [Kshs 8,724,137.95/= together with accrued interest of Kshs 2,613,751.70/=] (Calculated at interest rate of 14% on the corruptly acquired monetary assets of Kshs 8,724,137.95/= from 01/07/2015 to 01/07/2017)
ii. A pecuniary claim of Kshs 11,337,889.00/= together with accrued interest of Kshs 2,613,751.70/= (Calculated at interest rate of 14% on the corruptly acquired monetary assets of Kshs 8,724,137.95/= from 23/09/2015 to 23/09/2017)
c) In the alternative and without prejudice to prayer (b) a pecuniary claim against the 2nd, 3rd and 4th Defendants for Kshs 8,700,000/= together with prescribed interest from the date of unlawful acquisition.
d) A prohibitory injunction to restrain the 1st and 15th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing with a sum of Kshs 481,387/= held in bank Account number 0450194515735 in the name of Charity Mueni Musyimi at Equity Bank, Malindi Branch.
e) A Mandatory Injunction against the 15th Defendant to compel it to release Kshs 481,387 held in bank Account number 0450194515735 in the name of Charity Mueni Musyimi at Equity Bank, Malindi Branch to the Plaintiff.
f) A prohibitory Injunction against the 2nd, 3rd, 4th, 5th and 15th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing Kshs 320,775/= held in bank account number 0450294080735 in the name of Capital Solutions Limited at Equity Bank, Malindi Branch.
g) A mandatory injunction against the 15th Defendant to compel it to release Kshs 320,775/= held in bank account number 0450294080735 in the name of Capital Solutions Limited at Equity Bank, Malindi Branch to the Plaintiff.
h) A prohibitory Injunction against the 1st, 2nd,5th and 16th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing Kshs 3,938,663/= held in bank account number 01285118994000 in the name of Geotech Contractors Limited at National Bank, Port Way House Mombasa.
i) A mandatory injunction against the 15th Defendant to compel it to release Kshs 3,938,663/= held in bank account number 01285118994000 in the name of Geotech Contractors Limited at National Bank, Port Way House Mombasa to the Plaintiff.
j) A prohibitory Injunction against the 2nd and 17th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing Kshs 592,000.00/= held in Sacco account in the name of Sarah Musyimi-ID Number 21847336 (Staff number BIA 11557) held at Stima Sacco Limited
k) A mandatory injunction against the 17th Defendant to compel it to release Kshs 592,000.00/= held in Sacco account in the name of Sarah Musyimi-ID Number 21847336 (Staff number BIA 11557) held at Stima Sacco Limited
l) A prohibitory Injunction against the 3rd and 17th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing with Kshs 2,081,937.00/= held in Sacco account in the name of Josephat Lango Vaya-ID Number 11402143(Staff number BIA 14603) held at Stima Sacco Limited
m) A mandatory injunction against the 17th Defendant to compel it to release Kshs 2,081,937.00/= held in Sacco account in the name of Josephat Lango Vaya-ID Number 11402143(Staff number BIA 14603) held at Stima Sacco Limited
n) Costs of and incidental to the suit.
o) Interest at prescribed rates on (b) and (c) above from the date it was unlawfully acquired by the Defendants to the date the said funds are fully recovered from the Defendants.
p) Any other or further relief that the court may deem fit to grant.
The Parties
2.The Commission is a body corporate established under Section 3 of the Ethics & Anti-Corruption Commission Act, 2011, pursuant to Article 79 of the Constitution of Kenya 2010. It is mandated to institute and conduct proceedings for the purpose of recovery or protection of public property.
3.The 1st, 3rd and 4th Defendants were the Directors of the 5th Defendant who held its beneficial interest at all times material to this case.
4.The 2nd Defendant was the Director of the 5th and 6th Defendants who held its beneficial interest at all times material to this case.
5.The 5th and 6th Defendants are Limited Liability Companies registered in Kenya under the Companies Act, Cap 486 carrying on business in Nairobi and which were awarded tenders by the County Government of Kilifi (hereinafter referred to as “the County”) and were alleged to have deposited funds into the Bank accounts held by the 15th and 16th Defendants.
6.The 7th, 8th, 9th, 10th, 11th, 12th, 13th and 14th Defendants are employees of the County.
7.The 15th and 16th Defendants are Banks in which the suit accounts belonging to the Respondents are domiciled.
8.The Plaint was canvassed by way of viva voce evidence. Thereafter Learned Counsel for the parties summed up their cases by way of written submissions.
The Plaintiff’s case
9.The Commission called a total of Seventeen (17) witnesses including employees of the County, officers from Equity Bank, officers from National Treasury, officers from Central Bank, an officer from the Registrar of Companies, a digital forensic analyst and a forensic document examiner.
10.The Plaintiff’s case is that the payment voucher paid to Grand Top Solutions as well as the internal memo for the inspection and acceptance certificate dated 19th May, 2015 had forged signatures as PW9, Richard Mwasambu, the requisition officer according to the vouchers denied they were his. The county auditor indicated that Account no 1290163584518 was credited with Kshs 8,724,137.95 via RTGS on 1st July 2015 but was cancelled from the system on 30th June 2015 but it went through. Another transaction was initiated on 30th June 2015 to the same company and was paid on 23rd September 2015 for proposed upgrading of data center and security upgrade for cyber room configuration at the County. PW9 was only involved in Phase II.
11. Francis Mwatsuma Kiti, PW8, the legal Researcher, denied attending the tender committee meeting that was allegedly held on 24th June 2015. The meeting came after the award of 18th May 2015. The LSO number 0972393 dated 18th May 2015 was made before the acceptance letter dated 19th May 2015. The inspection of the project was done on 19th May 2015, the same day the offer was accepted by Grand Top Solutions meaning it was irregular. He adopted the minutes with 30 pages.
12. On the other hand, PW 11, Patience Umazi Tsimba, attended and adopted the one with 49 pages. She and PW 10, Daniel Mbaha Nguma confirmed that a tender committee meeting that was held on 24th June 2015 which they attended and where they deliberated the award of Kshs 9,200,000 to Grand Top Solutions for the proposed upgrading for cyber room. They said that the same was done through restricted tendering where ten (10) bidders were invited, four returned their bids and they settled on Grand Top Solutions. Not all the members were to sign the minutes so the minutes would still be valid if they did not have signatures of all members.
13. PW15, Judith Ngani Tsuma, The County director, Human Resource who confirmed that the 7th, 8th, 9th, 11th, 13th and 14th Defendant were employees of the County in different capacities.
14.From the National Treasury was PW2, Maureen Kimeli Chepkirui, who told the court that IFMIS is the system used by both County and National Government to manage public funds in County Government, National government. In this case Grand Top Solutions was one of the payees or beneficiaries. A requisition number 48 was raised in the system credited by a user known as Alex Kithuka and approved by Silas Juba Mohammed the same day. A report was raised on 30th June 2015 from their department vide purchase order No. 972393 raised by Julius Munga and approved by Benjamin Kai and Approver 2, Julius Mwaza. The same day, an invoice was raised in the system by Mr. Zain Zudi Nzai. She stated that the valuation was done by Gilbert Bayaa the same day and the payment done on 18th September 2015 by Gabriel Majalewa Mkare and invoice number 0972393 was paid for twice. The cancellation was done on 18th September 2015.
15.PW16, Leonard Kimutai Kipsanai confirmed that payment of Kshs 8,724,137.95 was made twice to Grand Top Solutions Account held by the 15th Defendant on 1st July 2015 and 23rd September 2015. The officers involved were Approver 1 Mutiso RKIB and name of Approver 2 was Raphael Kioli Mutiso. For the second payment, the Approver 1 was Mutiso RKIB and name of Approver 2 was Raphael Kioli Mutiso, for the 2nd transaction, the Approver 1 was Mwanzo PTIB and name of user was Paul Teido Mwazo. He made reference to letters from Kilifi County Government requesting for Internet Banking rights dated 30th June 2015 and received on 10th July 2015 with the names of Benjamin Kai Chilumo, Paul Teido Mwazo and Raphael Kioli Mutiso. There is also letter from Internet Banking assigning rights to Raphael Kioli Mutiso and another to Benjamin Kai Chilumo. The onboarding is the responsibility of the CEC Finance and they cannot stop a transaction even if a request were to be given to them.
16.It is not the duty of CBK to do due diligence of any payment in the IB system. That is the responsibility of the County Approvers and the commercial bank that is receiving the payment on behalf of the County clients. Credentials are communicated in two ways to ensure security and accountability. For CBK to know who approved a payment we ask for an audit trail which is what was produced.
17.According to PW13, Silas Mutunga Ngoka, in addition to what PW8 stated, he indicated that the letters stating the bank accounts as well as the forms of who has the rights of administration are usually delivered physically and received by CBK banking unit who maintain specimen signatures of officials who can give instructions on behalf of the County Governments. He contended that thorough verification is done before a user in IBS is created. The password is communicated via email and cell phone number. If a payment is passed by IFMIS the IBS cannot void it. If a payment is voided by IFMIS, the IBS will not know. The 9th Defendant was only granted rights as an inputter, which means she could view the system but she could not approve or make changes.
18.PW7, Moses Karema Mlewa, the ICT Manager told the court that there was upgrading of the Data Centre and Cyber ROM project which took place and he inspected the works and prepared the report. He confirmed that the works were done in two phases which were tendered separately. He was involved in the evaluation of the tenders which was done as per Evaluation Report dated 23rd March 2015. KCG/179/2014/2015 was in respect to upgrading phase and KCG 392/2014/2015, which is the second phase was tendered separately. He confirmed that he signed the reports.
19.PW6, Alex Kinyanjui, the ICT forensic investigator for the Plaintiff undertook a site visit at the County office accompanied by the Investigating Officer Mr. Lwanga and the ICT Director at Kilifi County one Moses Karema Mlewa where they found various components which are listed in the report and one item namely Cyber ROM Fireball CRI00ING which he took for a market survey and found that, taking the market pricing and all relevant duties and levies into consideration, the total cost came to Kshs. 693,764/73 and with 100% profit it would come to Kshs. 1,387,529/46 which price he confirmed from the manufacturer of Cyber ROM Firewall. According to him, the goods were not fully delivered, as he only found a cabinet and a rack, higher than the one in court. Same contained servers, a cabinet/rack containing network components and a cabinet containing CCTV equipment.
20.The Forensic document examiner was PW3, Jacob Oduor, who produced three reports. Report No. 1 is dated 26th September 2017 which was upon a request made by Tabu Lwanga of EACC Malindi who submitted documents for examination and had five requests. His finding was that the payment voucher was made by the same author, Mohamed Chuba; Alex Mwongela and Richard Muasambu did not sign the inspection and acceptance certificate however, Andrew Kombe signed the inspection and acceptance certificate.
i.) Whether signature indicated by arrow in red ink on EXBA1 has made by the same author as in B2 and signature indicated in arrow in blue C2 and is finding was that they were made by same author – Raphael Mutiso.
21.As regards Report No. 2, the question was whether the Signature indicated by arrow in red in document A was by the same author as specimen signature in document marked B. His finding is that they were made by the same author.
22.In report No. 3 dated 8th August 2016, the question was whether signature in blue arrow on A1, A2 and A4 was by the same author as on B1. His findings were that they were made by the same author. That the signature on A3 was made by the same author as in B2. Alex Kombe signed both A3 and A5. He further found was that Julius Wambua did not sign the payment voucher. Lastly, that the handwriting on A2 and B8 were of the same author, that is Richard Mwasambu. The writing on the space provided for the date and names on the purchase requisition A2 and that of Sophie Mwandawiro is different. What was authored by Richard Mwasambu are the entries at the top.
23.PW4, Stephen Yego, a forensic document examiner working with EACC stated that on 19th October 2019 one Tabu Lwanga submitted the following exhibits through an exhibits memo form; A1 letter dated 17th August 2015 addressed to Director of IFMIS, A2 County Government of Kilifi purchase Requisition dated 22nd April, 2015, B1 specimen signatures of Paul Keido Mwaso, B2 specimen signatures and handwriting of Richard Mwasambu. The investigating officer sought to ascertain whether the signature indicated by an arrow in red on exhibit A1 and the specimen signatures on B1 were by the same author. PW4 stated that upon examination he concluded that that the signatures were not made by the same person. He found that the signature indicated by an arrow in blue on exhibit A2 and the specimen signatures on document B2 were not made by the same author. Thirdly, he found that the handwriting circled and indicated by an arrow in red on exhibit B2 and A2 and the specimen handwriting in B2 were not made by the same author. It was his testimony that Paul Teido Muanzo did not sign the letter dated 17th August 2015 and Richard Mwasamba did not sign the purchase Requisition.
24.PW5, Ivy Akinyi Scott, a forensic document examiner with the Plaintiff received documents on 6th November 2019 from Malindi EACC submitted by Tabu Lwanga seeking to ascertain whether signature marked with an arrow in pencil in A1 was made by same author as in B 2. He examined and compared the signatures and found they were by the same author, Julius Ndung’u Wambua. Secondly, she was to ascertain whether the signature indicated in the red arrow in A6 and A9 were made by the same author as in B12 and C6 to which they found that Sophie Mnyamanyi Mwandawiro signed the contract (A6) and the letter (A9). Thirdly, she found that the signature on A2, B12 and B6 were made by the same author, Sophie Mnyamanyi Mwandawiro who signed the purchase Requisition.
25.Signature indicated in red in A4 was made by the same author Benjamin Chiluma as B15. The signature marked in black in A4 was made by the same person as in B14, one Silas Mohamed Chumba Munga. It was found that the signature marked in pencil arrow in A4 was made by the same person as in B12 and known signature in C6. The signature indicated with blue in A7 and A8 were made by the same author as B5, the signature indicated by red ink on A7 and A8 were by the same person as in B16. Lastly, she stated that the signatures indicated in pencil on A8 and A7 were made by the same author as B16.
26.PW17, Regina Ng’ang’a and PW18, Tabu Kwanga who conducted investigations with other officers confirmed that two payments were made without any work being done. PW18 was of the opinion that first payment has no documents at all so it is out rightly irregular. The second payment is the one that was voided and paid by Majaliwa Mkare.
27.PW1 was the Operations Manager, who confirmed that upon request by officers of the Plaintiff for account opening documents and bank statement of account number 1290163584518, Kenyatta Avenue Branch Nairobi, they did investigations and found that on 1st July 2015 there is cheque of 8,724,137.95 from Kilifi County by RTGS; on 3rd July 2015 a withdrawal of 9,000,000/=. The account was opened by one Charity Mueni Musyimi.
The Defendants’ Case
28. The 1-6th Defendants filed a statement of defence dated 13th February 2018, 7-10th and 13th Defendants’ dated 8th March 2018, 11th Defendant’s dated 20th April 2018, 12th Defendant’s dated 15th December 2017, 14th Defendant’s dated 29th December 2017, 16th Defendant’s dated 13th April 2017, 17th Defendant’s dated 10th November 2018. The 15th, 16th and 17th Defendants did not file responses to the Plaint.
29.The Defendants called a total of eleven (11) witnesses. DW1: Allan Kimata, the co-director of KODD solutions limited together with the late Dobbs Aggrey Mkolwe stated that he was engaged twice in two projects by the county; scope of work for Phase I was to create a back up solution – setting up a data Centre separate from the Kilifi Data Centre while the scope of work on phase II was installing and configuring a security system for the computers in Kilifi County – security upgrade. The late Dobbs was the operations Manager for both Phases and is the one who supervised the works.
30.DW2, was Stephen Sanga Barrawah, who testified that the 3rd Defendant who was the Manager in-charge of Operations in Grand Top Solutions stated that his duties included Procurement and Supply Chain Management and was working for Grand Top Solutions and not Grand Top Solutions Limited. He participated in filling the tender document. The notification to apply for pre-qualification was in print media which they picked and filled the documents for prequalification. The Procurement made a call to them informing Grand Top Solutions to go and participate in the tender and he went and picked the bid document, filled it and took the bid document back for consideration. After they were successful, he replied with an acceptance letter and they signed the contract.
31. He confirmed that both LSO’s had the same tender number which was not strange as the tender was done in phases which they sub-contracted KODD Solutions because of the equipment in a subcontract dated 30th May 2015. After the works were done, they issued the County Government with an invoice dated 20th May 2015 before the works were inspected. He stated that the invoice was raised on 29th May 2015 so that he could marry the date of VAT returns for KRA purposes. He confirmed that Grand Top Solutions was paid Kshs.9,200,000/= for the work which was the entire amount for the tender.
32.It was his testimony that Grand Top solutions was invited in the same way as Phase I through a phone call to Charity Mueni Musyimi. KODD solutions raised an invoice of Kshs. 6.490,000/=. The LSO was signed but it was not appended in the right place. It was appended slightly above the word supplier by the late Charles Munga. It was contended that his tender is dated 8th July 2015 while that of the plaintiff is dated 18th May 2015. That the Terms of reference are from the tender document, word for word. Both phase I and II were fully completed and KODD was paid.
33.DW3, Sophia Mnyamanyi Mwandawiro, who had worked with the Kilifi County Government stated that she had worked there from 2013 and had a password to the IFMIS System. That the ICT Department made a request for upgrading of the cyber rom and a contract was signed with regard to the payment, the subject of this case she checked the budget to see if there were funds for that requisition and then signed the purchase requisition form. Thereafter, it went back to ICT and she did not know what happened to it. It is after that that the voucher comes back and it goes to the system.
34.She stated that her role was only checking the availability of funds. She also confirmed that she signed the two LSOs for this tender which was also executed by relevant ICT Officers and the LPO. The payment voucher on page 124 of the plaintiff’s bundle has two signatures. One is for the Chief Officer ICT and the other is for the authorizer in internet banking. It was her testimony that Paul Teido had the duty to approve the payment in Internet Banking. She confirmed that they do not pay for services which have not been done.
35.DW4, Raphael Kioli Mutiso, who worked as a county employee from 1st October 2014 and retired on 30th June 2016 in Internet Banking as Approver 1 had the requisite password through the Central Bank. He denied being involved in IFMIS. He stated that after examination of the payment voucher that would be brought to him physically in a register, he would sign to acknowledge receipt and then log into the IBS and check if the voucher was there. If it was not there he would return it to IFMIS. If it is in the IBS, he would check if it has all the relevant documents and authorize it both electronically and manually. It would then automatically move to Approver 2 with the physical documents.
36.He indicated that he would not know if a voucher has been voided in the IFMIS unless he was told. He also indicated that he did not have access to the procurement file. He approved both payments and the amount was payable to the supplier was subject to withholding tax due to KRA. He confirmed that the AIE Holder in this case was the Chief officer ICT Department, Mohammed Chuba ,the 13th Defendant. He contended that the voluminous nature of work that was there could not allow him to scrutinize every detail of each document and it is the EACC who pointed out the disparities he has mentioned in his statement.
37.DW5 ALEX MWONGELA, the ICT Officer at the County Government of Kilifi told the court that he did the first requisition which is what initiates the procurement process, by logging into IFMIS and populating of the requisition form. What prompted him to do so is that there was a manual/physical requisition form which had been approved and on that basis he filled the one in the system He stated that he inspected Phase I which entailed Data centre Co-location services and issued an inspection report together with the Director ICT (Moses Karema) and Chief officer (Mohamed Chuba). The data center was in his office and another in the cloud.
38. He further told the court that he was in the tender evaluation committee and he confirmed that Grand Top was awarded the tender. He could not remember if he inspected phase II. As regards phase I, he stated that the works were done to their satisfaction in accordance with the Terms of Reference (TOR) and were done in two phases and there was no complaint. On IFMIS he only requisitioned once. There was no irregularity in the award of the tender. The work was done and no money was lost.
39.DW6 WAS ANDREW KITHI KOMBE, a procurement officer at the County stated that in this procurement the role he played was opening of the tenders and secretary in the Tender committee. It was his testimony that since there were two phases they did one tender opening for each phase. There were two separate tenders and two contracts. Each tender had its own Tender Number in as much as the project was the same.
40. He denied signing the inspection and Acceptance certificate, that it was forged and should not have been used to pay Grand-Top solutions or anyone else. As per the minutes, the tender Number reads KCG/392/2014/2015 and the LSO also reads KCG/392/2014/2015. The tender number on the minutes and LSO are the same but the reference numbers in the letters of award is different. His testimony was that the irregularity on the tender number and the fact that the acceptance letter came after the LSO was an irregularity and for those reasons, the payment voucher should not have been used to make payment. He confirmed that he saw Top’s bid documents for both phases and that prequalified suppliers can be invited to bid through a phone call. It is done sometimes through a phone call or through a letter depending on the urgency of the works.
41. In cross examination by Mr. Saluny, Advocate, DW6 testified that two tenders were floated; the first one was configuration of the Cyber Rom Phase II; the tendering documentation was separate for the two tenders. The contractor was the same but they were doing two separate things although for the same project. He sat in the committee for both tenders. The Tender No. KCG/179/2014/2015 was for proposed upgrading of data center servers and security upgrade of Cyber Rom Configuration (Phase I) and Tender No. KCG/392/2014/2015 for proposed upgrading of Data Center was for Phase II. Grand Top was paid for the works they had done. DW7 denied being given any kick back or money and neither had he heard of anybody in the team having received any money or kickbacks.
42.He confirmed that he sat in two committees namely Tender Opening Committee and Tender Committee. The former’s main duty is to write the names and addresses of the bidders who have bid, write their bid sums, sign the report and send it to the Accounting Officer together with the physical bids for appointment of a Tender Evaluation Committee. The latter does not deliberate on who to award the tender.
43.He stated that during preparation of the first minutes he realized that he had left out one of the agendas but he had already signed it with the chairman so he informed the chairman and they did another set of payments while leaving the first intact as it had already made some payments. All of these are minutes of the same meeting which we held on 24th June 2015. The second and third minutes came about because he had left out some agenda in the first set. If an agenda is missing in the minutes it could not go for payments as it could mean the agenda was not discussed. He stated that had he not done the second and third set of minutes then some departments would not have been able to make payments. There was nothing irregular in him making the other minutes. He denied conspiring with any of the defendants to defraud the county.
44.DW8, DAVID MAANGI KITUNGA testified on behalf of the 2nd Defendant who was abroad and not feeling well.
45.Paul Teido Mwazo who was the Assistant City Treasurer and whose duty was Approver 2 in the Internet Banking system stated that Grand Top Solutions was one of the suppliers to Kilifi County Government. He confirmed that on 23rd September 2015 he approved a payment for Kshs. 8,724,137.94 after he had confirmed that there was a purchase requisition, there was a purchase order, a delivery note and the supplier’s invoice. According to the payment voucher, the gross is Kshs. 9,200,000/= VAT of 6% IS 475,862.06 leaving a net payment to Grand Top of Kshs. 8,724,137.94.
46.He indicated that it would be unprocedural for the documents to be brought to him first before they went to Approver 1 as he was supposed to use the special reference number for him to search for the documents in the system. In this case the special reference number 2827 was appearing on the right hand side of the voucher. He stated that there was no provision for voiding and if it was to be done it should have been done in the IFMIS. He denied being informed that the payment/approval had been voided. He also denied being given a share of the money that was paid to Grand Top on 23rd September 2015.
47. He stated that the LSO (EXBP.21) was dated 18th May 2015 and the inspection and Acceptance Certificate (EXBP.3) was dated 19th May 2015, one day after the LSO. Meaning that Grand Top was issued with an LSO and the next day the works had been done and inspected which according to him was possible. He denied making any payment with serial number 2453 and contended that the payment of 1st July 2015 was not made by myself. According to IFMIS audit trail, Approver 2 was Riziki Matano.
48.DW 9, Benjamin Kai Chilumo, who was employed by the County stated that there were few challenges with the payment system where it would allow payments to be made without budget lines and there was sharing of passwords which should not have happened. He admitted to authoring the letter/memo dated 18th December 2015 whose subject is “Audit of the Below the line Transactions” due to an inability of the system to detect such transactions. The audit was conducted and by a report is dated 1st February 2015 made by Keziah Wambui, there was a recommendation that a forensic audit be conducted as there was issues with IFMIS but it was not done. They wrote to the EACC for the whole system to be audited.
49.It was his position that the first payment was made on 1st July 2015 and the second payment on 23rd September 2015. For the second payment Approver 1 was Raphael Kioli Mutiso and Approver 2 Paul Teido. He admitted that his signature was in the first LSO dated
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a) A declaration that the acquisition of Kshs 8,724,137.95/= by the 1st Defendant on 01/07/2015 and 24/09/2015 respectively from the County Government of Kilifi in respect of Tender No KCG/392/2014/2015 for the procurement of for upgrading of data center and security upgrade of cyber room configuration was unconstitutional, fraudulent, unlawful and corruptly irregular.
b) A pecuniary claim of Kshs 22,675,778.00/= from the Defendants which at the time of filing the suit was been assessed as follows;
i. A pecuniary claim of Kshs 11,337,889.00/= [Kshs 8,724,137.95/= together with accrued interest of Kshs 2,613,751.70/=] (Calculated at interest rate of 14% on the corruptly acquired monetary assets of Kshs 8,724,137.95/= from 01/07/2015 to 01/07/2017)
ii. A pecuniary claim of Kshs 11,337,889.00/= together with accrued interest of Kshs 2,613,751.70/= (Calculated at interest rate of 14% on the corruptly acquired monetary assets of Kshs 8,724,137.95/= from 23/09/2015 to 23/09/2017)
c) In the alternative and without prejudice to prayer (b) a pecuniary claim against the 2nd, 3rd and 4th Defendants for Kshs 8,700,000/= together with prescribed interest from the date of unlawful acquisition.
d) A prohibitory injunction to restrain the 1st and 15th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing with a sum of Kshs 481,387/= held in bank Account number 0450194515735 in the name of Charity Mueni Musyimi at Equity Bank, Malindi Branch.
e) A Mandatory Injunction against the 15th Defendant to compel it to release Kshs 481,387 held in bank Account number 0450194515735 in the name of Charity Mueni Musyimi at Equity Bank, Malindi Branch to the Plaintiff.
f) A prohibitory Injunction against the 2nd, 3rd, 4th, 5th and 15th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing Kshs 320,775/= held in bank account number 0450294080735 in the name of Capital Solutions Limited at Equity Bank, Malindi Branch.
g) A mandatory injunction against the 15th Defendant to compel it to release Kshs 320,775/= held in bank account number 0450294080735 in the name of Capital Solutions Limited at Equity Bank, Malindi Branch to the Plaintiff.
h) A prohibitory Injunction against the 1st, 2nd,5th and 16th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing Kshs 3,938,663/= held in bank account number 01285118994000 in the name of Geotech Contractors Limited at National Bank, Port Way House Mombasa.
i) A mandatory injunction against the 15th Defendant to compel it to release Kshs 3,938,663/= held in bank account number 01285118994000 in the name of Geotech Contractors Limited at National Bank, Port Way House Mombasa to the Plaintiff.
j) A prohibitory Injunction against the 2nd and 17th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing Kshs 592,000.00/= held in Sacco account in the name of Sarah Musyimi-ID Number 21847336 (Staff number BIA 11557) held at Stima Sacco Limited
k) A mandatory injunction against the 17th Defendant to compel it to release Kshs 592,000.00/= held in Sacco account in the name of Sarah Musyimi-ID Number 21847336 (Staff number BIA 11557) held at Stima Sacco Limited
l) A prohibitory Injunction against the 3rd and 17th Defendants by themselves or through their agents, servants or assigns from transferring, disposing of, wasting or in any way dealing with Kshs 2,081,937.00/= held in Sacco account in the name of Josephat Lango Vaya-ID Number 11402143(Staff number BIA 14603) held at Stima Sacco Limited
m) A mandatory injunction against the 17th Defendant to compel it to release Kshs 2,081,937.00/= held in Sacco account in the name of Josephat Lango Vaya-ID Number 11402143(Staff number BIA 14603) held at Stima Sacco Limited
n) Costs of and incidental to the suit.
o) Interest at prescribed rates on (b) and (c) above from the date it was unlawfully acquired by the Defendants to the date the said funds are fully recovered from the Defendants.
p) Any other or further relief that the court may deem fit to grant.
The Parties
2.The Commission is a body corporate established under Section 3 of the Ethics & Anti-Corruption Commission Act, 2011, pursuant to Article 79 of the Constitution of Kenya 2010. It is mandated to institute and conduct proceedings for the purpose of recovery or protection of public property.
3.The 1st, 3rd and 4th Defendants were the Directors of the 5th Defendant who held its beneficial interest at all times material to this case.
4.The 2nd Defendant was the Director of the 5th and 6th Defendants who held its beneficial interest at all times material to this case.
5.The 5th and 6th Defendants are Limited Liability Companies registered in Kenya under the Companies Act, Cap 486 carrying on business in Nairobi and which were awarded tenders by the County Government of Kilifi (hereinafter referred to as “the County”) and were alleged to have deposited funds into the Bank accounts held by the 15th and 16th Defendants.
6.The 7th, 8th, 9th, 10th, 11th, 12th, 13th and 14th Defendants are employees of the County.
7.The 15th and 16th Defendants are Banks in which the suit accounts belonging to the Respondents are domiciled.
8.The Plaint was canvassed by way of viva voce evidence. Thereafter Learned Counsel for the parties summed up their cases by way of written submissions.
The Plaintiff’s case
9.The Commission called a total of Seventeen (17) witnesses including employees of the County, officers from Equity Bank, officers from National Treasury, officers from Central Bank, an officer from the Registrar of Companies, a digital forensic analyst and a forensic document examiner.
10.The Plaintiff’s case is that the payment voucher paid to Grand Top Solutions as well as the internal memo for the inspection and acceptance certificate dated 19th May, 2015 had forged signatures as PW9, Richard Mwasambu, the requisition officer according to the vouchers denied they were his. The county auditor indicated that Account no 1290163584518 was credited with Kshs 8,724,137.95 via RTGS on 1st July 2015 but was cancelled from the system on 30th June 2015 but it went through. Another transaction was initiated on 30th June 2015 to the same company and was paid on 23rd September 2015 for proposed upgrading of data center and security upgrade for cyber room configuration at the County. PW9 was only involved in Phase II.
11. Francis Mwatsuma Kiti, PW8, the legal Researcher, denied attending the tender committee meeting that was allegedly held on 24th June 2015. The meeting came after the award of 18th May 2015. The LSO number 0972393 dated 18th May 2015 was made before the acceptance letter dated 19th May 2015. The inspection of the project was done on 19th May 2015, the same day the offer was accepted by Grand Top Solutions meaning it was irregular. He adopted the minutes with 30 pages.
12. On the other hand, PW 11, Patience Umazi Tsimba, attended and adopted the one with 49 pages. She and PW 10, Daniel Mbaha Nguma confirmed that a tender committee meeting that was held on 24th June 2015 which they attended and where they deliberated the award of Kshs 9,200,000 to Grand Top Solutions for the proposed upgrading for cyber room. They said that the same was done through restricted tendering where ten (10) bidders were invited, four returned their bids and they settled on Grand Top Solutions. Not all the members were to sign the minutes so the minutes would still be valid if they did not have signatures of all members.
13. PW15, Judith Ngani Tsuma, The County director, Human Resource who confirmed that the 7th, 8th, 9th, 11th, 13th and 14th Defendant were employees of the County in different capacities.
14.From the National Treasury was PW2, Maureen Kimeli Chepkirui, who told the court that IFMIS is the system used by both County and National Government to manage public funds in County Government, National government. In this case Grand Top Solutions was one of the payees or beneficiaries. A requisition number 48 was raised in the system credited by a user known as Alex Kithuka and approved by Silas Juba Mohammed the same day. A report was raised on 30th June 2015 from their department vide purchase order No. 972393 raised by Julius Munga and approved by Benjamin Kai and Approver 2, Julius Mwaza. The same day, an invoice was raised in the system by Mr. Zain Zudi Nzai. She stated that the valuation was done by Gilbert Bayaa the same day and the payment done on 18th September 2015 by Gabriel Majalewa Mkare and invoice number 0972393 was paid for twice. The cancellation was done on 18th September 2015.
15.PW16, Leonard Kimutai Kipsanai confirmed that payment of Kshs 8,724,137.95 was made twice to Grand Top Solutions Account held by the 15th Defendant on 1st July 2015 and 23rd September 2015. The officers involved were Approver 1 Mutiso RKIB and name of Approver 2 was Raphael Kioli Mutiso. For the second payment, the Approver 1 was Mutiso RKIB and name of Approver 2 was Raphael Kioli Mutiso, for the 2nd transaction, the Approver 1 was Mwanzo PTIB and name of user was Paul Teido Mwazo. He made reference to letters from Kilifi County Government requesting for Internet Banking rights dated 30th June 2015 and received on 10th July 2015 with the names of Benjamin Kai Chilumo, Paul Teido Mwazo and Raphael Kioli Mutiso. There is also letter from Internet Banking assigning rights to Raphael Kioli Mutiso and another to Benjamin Kai Chilumo. The onboarding is the responsibility of the CEC Finance and they cannot stop a transaction even if a request were to be given to them.
16.It is not the duty of CBK to do due diligence of any payment in the IB system. That is the responsibility of the County Approvers and the commercial bank that is receiving the payment on behalf of the County clients. Credentials are communicated in two ways to ensure security and accountability. For CBK to know who approved a payment we ask for an audit trail which is what was produced.
17.According to PW13, Silas Mutunga Ngoka, in addition to what PW8 stated, he indicated that the letters stating the bank accounts as well as the forms of who has the rights of administration are usually delivered physically and received by CBK banking unit who maintain specimen signatures of officials who can give instructions on behalf of the County Governments. He contended that thorough verification is done before a user in IBS is created. The password is communicated via email and cell phone number. If a payment is passed by IFMIS the IBS cannot void it. If a payment is voided by IFMIS, the IBS will not know. The 9th Defendant was only granted rights as an inputter, which means she could view the system but she could not approve or make changes.
18.PW7, Moses Karema Mlewa, the ICT Manager told the court that there was upgrading of the Data Centre and Cyber ROM project which took place and he inspected the works and prepared the report. He confirmed that the works were done in two phases which were tendered separately. He was involved in the evaluation of the tenders which was done as per Evaluation Report dated 23rd March 2015. KCG/179/2014/2015 was in respect to upgrading phase and KCG 392/2014/2015, which is the second phase was tendered separately. He confirmed that he signed the reports.
19.PW6, Alex Kinyanjui, the ICT forensic investigator for the Plaintiff undertook a site visit at the County office accompanied by the Investigating Officer Mr. Lwanga and the ICT Director at Kilifi County one Moses Karema Mlewa where they found various components which are listed in the report and one item namely Cyber ROM Fireball CRI00ING which he took for a market survey and found that, taking the market pricing and all relevant duties and levies into consideration, the total cost came to Kshs. 693,764/73 and with 100% profit it would come to Kshs. 1,387,529/46 which price he confirmed from the manufacturer of Cyber ROM Firewall. According to him, the goods were not fully delivered, as he only found a cabinet and a rack, higher than the one in court. Same contained servers, a cabinet/rack containing network components and a cabinet containing CCTV equipment.
20.The Forensic document examiner was PW3, Jacob Oduor, who produced three reports. Report No. 1 is dated 26th September 2017 which was upon a request made by Tabu Lwanga of EACC Malindi who submitted documents for examination and had five requests. His finding was that the payment voucher was made by the same author, Mohamed Chuba; Alex Mwongela and Richard Muasambu did not sign the inspection and acceptance certificate however, Andrew Kombe signed the inspection and acceptance certificate.
i.) Whether signature indicated by arrow in red ink on EXBA1 has made by the same author as in B2 and signature indicated in arrow in blue C2 and is finding was that they were made by same author – Raphael Mutiso.
21.As regards Report No. 2, the question was whether the Signature indicated by arrow in red in document A was by the same author as specimen signature in document marked B. His finding is that they were made by the same author.
22.In report No. 3 dated 8th August 2016, the question was whether signature in blue arrow on A1, A2 and A4 was by the same author as on B1. His findings were that they were made by the same author. That the signature on A3 was made by the same author as in B2. Alex Kombe signed both A3 and A5. He further found was that Julius Wambua did not sign the payment voucher. Lastly, that the handwriting on A2 and B8 were of the same author, that is Richard Mwasambu. The writing on the space provided for the date and names on the purchase requisition A2 and that of Sophie Mwandawiro is different. What was authored by Richard Mwasambu are the entries at the top.
23.PW4, Stephen Yego, a forensic document examiner working with EACC stated that on 19th October 2019 one Tabu Lwanga submitted the following exhibits through an exhibits memo form; A1 letter dated 17th August 2015 addressed to Director of IFMIS, A2 County Government of Kilifi purchase Requisition dated 22nd April, 2015, B1 specimen signatures of Paul Keido Mwaso, B2 specimen signatures and handwriting of Richard Mwasambu. The investigating officer sought to ascertain whether the signature indicated by an arrow in red on exhibit A1 and the specimen signatures on B1 were by the same author. PW4 stated that upon examination he concluded that that the signatures were not made by the same person. He found that the signature indicated by an arrow in blue on exhibit A2 and the specimen signatures on document B2 were not made by the same author. Thirdly, he found that the handwriting circled and indicated by an arrow in red on exhibit B2 and A2 and the specimen handwriting in B2 were not made by the same author. It was his testimony that Paul Teido Muanzo did not sign the letter dated 17th August 2015 and Richard Mwasamba did not sign the purchase Requisition.
24.PW5, Ivy Akinyi Scott, a forensic document examiner with the Plaintiff received documents on 6th November 2019 from Malindi EACC submitted by Tabu Lwanga seeking to ascertain whether signature marked with an arrow in pencil in A1 was made by same author as in B 2. He examined and compared the signatures and found they were by the same author, Julius Ndung’u Wambua. Secondly, she was to ascertain whether the signature indicated in the red arrow in A6 and A9 were made by the same author as in B12 and C6 to which they found that Sophie Mnyamanyi Mwandawiro signed the contract (A6) and the letter (A9). Thirdly, she found that the signature on A2, B12 and B6 were made by the same author, Sophie Mnyamanyi Mwandawiro who signed the purchase Requisition.
25.Signature indicated in red in A4 was made by the same author Benjamin Chiluma as B15. The signature marked in black in A4 was made by the same person as in B14, one Silas Mohamed Chumba Munga. It was found that the signature marked in pencil arrow in A4 was made by the same person as in B12 and known signature in C6. The signature indicated with blue in A7 and A8 were made by the same author as B5, the signature indicated by red ink on A7 and A8 were by the same person as in B16. Lastly, she stated that the signatures indicated in pencil on A8 and A7 were made by the same author as B16.
26.PW17, Regina Ng’ang’a and PW18, Tabu Kwanga who conducted investigations with other officers confirmed that two payments were made without any work being done. PW18 was of the opinion that first payment has no documents at all so it is out rightly irregular. The second payment is the one that was voided and paid by Majaliwa Mkare.
27.PW1 was the Operations Manager, who confirmed that upon request by officers of the Plaintiff for account opening documents and bank statement of account number 1290163584518, Kenyatta Avenue Branch Nairobi, they did investigations and found that on 1st July 2015 there is cheque of 8,724,137.95 from Kilifi County by RTGS; on 3rd July 2015 a withdrawal of 9,000,000/=. The account was opened by one Charity Mueni Musyimi.
The Defendants’ Case
28. The 1-6th Defendants filed a statement of defence dated 13th February 2018, 7-10th and 13th Defendants’ dated 8th March 2018, 11th Defendant’s dated 20th April 2018, 12th Defendant’s dated 15th December 2017, 14th Defendant’s dated 29th December 2017, 16th Defendant’s dated 13th April 2017, 17th Defendant’s dated 10th November 2018. The 15th, 16th and 17th Defendants did not file responses to the Plaint.
29.The Defendants called a total of eleven (11) witnesses. DW1: Allan Kimata, the co-director of KODD solutions limited together with the late Dobbs Aggrey Mkolwe stated that he was engaged twice in two projects by the county; scope of work for Phase I was to create a back up solution – setting up a data Centre separate from the Kilifi Data Centre while the scope of work on phase II was installing and configuring a security system for the computers in Kilifi County – security upgrade. The late Dobbs was the operations Manager for both Phases and is the one who supervised the works.
30.DW2, was Stephen Sanga Barrawah, who testified that the 3rd Defendant who was the Manager in-charge of Operations in Grand Top Solutions stated that his duties included Procurement and Supply Chain Management and was working for Grand Top Solutions and not Grand Top Solutions Limited. He participated in filling the tender document. The notification to apply for pre-qualification was in print media which they picked and filled the documents for prequalification. The Procurement made a call to them informing Grand Top Solutions to go and participate in the tender and he went and picked the bid document, filled it and took the bid document back for consideration. After they were successful, he replied with an acceptance letter and they signed the contract.
31. He confirmed that both LSO’s had the same tender number which was not strange as the tender was done in phases which they sub-contracted KODD Solutions because of the equipment in a subcontract dated 30th May 2015. After the works were done, they issued the County Government with an invoice dated 20th May 2015 before the works were inspected. He stated that the invoice was raised on 29th May 2015 so that he could marry the date of VAT returns for KRA purposes. He confirmed that Grand Top Solutions was paid Kshs.9,200,000/= for the work which was the entire amount for the tender.
32.It was his testimony that Grand Top solutions was invited in the same way as Phase I through a phone call to Charity Mueni Musyimi. KODD solutions raised an invoice of Kshs. 6.490,000/=. The LSO was signed but it was not appended in the right place. It was appended slightly above the word supplier by the late Charles Munga. It was contended that his tender is dated 8th July 2015 while that of the plaintiff is dated 18th May 2015. That the Terms of reference are from the tender document, word for word. Both phase I and II were fully completed and KODD was paid.
33.DW3, Sophia Mnyamanyi Mwandawiro, who had worked with the Kilifi County Government stated that she had worked there from 2013 and had a password to the IFMIS System. That the ICT Department made a request for upgrading of the cyber rom and a contract was signed with regard to the payment, the subject of this case she checked the budget to see if there were funds for that requisition and then signed the purchase requisition form. Thereafter, it went back to ICT and she did not know what happened to it. It is after that that the voucher comes back and it goes to the system.
34.She stated that her role was only checking the availability of funds. She also confirmed that she signed the two LSOs for this tender which was also executed by relevant ICT Officers and the LPO. The payment voucher on page 124 of the plaintiff’s bundle has two signatures. One is for the Chief Officer ICT and the other is for the authorizer in internet banking. It was her testimony that Paul Teido had the duty to approve the payment in Internet Banking. She confirmed that they do not pay for services which have not been done.
35.DW4, Raphael Kioli Mutiso, who worked as a county employee from 1st October 2014 and retired on 30th June 2016 in Internet Banking as Approver 1 had the requisite password through the Central Bank. He denied being involved in IFMIS. He stated that after examination of the payment voucher that would be brought to him physically in a register, he would sign to acknowledge receipt and then log into the IBS and check if the voucher was there. If it was not there he would return it to IFMIS. If it is in the IBS, he would check if it has all the relevant documents and authorize it both electronically and manually. It would then automatically move to Approver 2 with the physical documents.
36.He indicated that he would not know if a voucher has been voided in the IFMIS unless he was told. He also indicated that he did not have access to the procurement file. He approved both payments and the amount was payable to the supplier was subject to withholding tax due to KRA. He confirmed that the AIE Holder in this case was the Chief officer ICT Department, Mohammed Chuba ,the 13th Defendant. He contended that the voluminous nature of work that was there could not allow him to scrutinize every detail of each document and it is the EACC who pointed out the disparities he has mentioned in his statement.
37.DW5 ALEX MWONGELA, the ICT Officer at the County Government of Kilifi told the court that he did the first requisition which is what initiates the procurement process, by logging into IFMIS and populating of the requisition form. What prompted him to do so is that there was a manual/physical requisition form which had been approved and on that basis he filled the one in the system He stated that he inspected Phase I which entailed Data centre Co-location services and issued an inspection report together with the Director ICT (Moses Karema) and Chief officer (Mohamed Chuba). The data center was in his office and another in the cloud.
38. He further told the court that he was in the tender evaluation committee and he confirmed that Grand Top was awarded the tender. He could not remember if he inspected phase II. As regards phase I, he stated that the works were done to their satisfaction in accordance with the Terms of Reference (TOR) and were done in two phases and there was no complaint. On IFMIS he only requisitioned once. There was no irregularity in the award of the tender. The work was done and no money was lost.
39.DW6 WAS ANDREW KITHI KOMBE, a procurement officer at the County stated that in this procurement the role he played was opening of the tenders and secretary in the Tender committee. It was his testimony that since there were two phases they did one tender opening for each phase. There were two separate tenders and two contracts. Each tender had its own Tender Number in as much as the project was the same.
40. He denied signing the inspection and Acceptance certificate, that it was forged and should not have been used to pay Grand-Top solutions or anyone else. As per the minutes, the tender Number reads KCG/392/2014/2015 and the LSO also reads KCG/392/2014/2015. The tender number on the minutes and LSO are the same but the reference numbers in the letters of award is different. His testimony was that the irregularity on the tender number and the fact that the acceptance letter came after the LSO was an irregularity and for those reasons, the payment voucher should not have been used to make payment. He confirmed that he saw Top’s bid documents for both phases and that prequalified suppliers can be invited to bid through a phone call. It is done sometimes through a phone call or through a letter depending on the urgency of the works.
41. In cross examination by Mr. Saluny, Advocate, DW6 testified that two tenders were floated; the first one was configuration of the Cyber Rom Phase II; the tendering documentation was separate for the two tenders. The contractor was the same but they were doing two separate things although for the same project. He sat in the committee for both tenders. The Tender No. KCG/179/2014/2015 was for proposed upgrading of data center servers and security upgrade of Cyber Rom Configuration (Phase I) and Tender No. KCG/392/2014/2015 for proposed upgrading of Data Center was for Phase II. Grand Top was paid for the works they had done. DW7 denied being given any kick back or money and neither had he heard of anybody in the team having received any money or kickbacks.
42.He confirmed that he sat in two committees namely Tender Opening Committee and Tender Committee. The former’s main duty is to write the names and addresses of the bidders who have bid, write their bid sums, sign the report and send it to the Accounting Officer together with the physical bids for appointment of a Tender Evaluation Committee. The latter does not deliberate on who to award the tender.
43.He stated that during preparation of the first minutes he realized that he had left out one of the agendas but he had already signed it with the chairman so he informed the chairman and they did another set of payments while leaving the first intact as it had already made some payments. All of these are minutes of the same meeting which we held on 24th June 2015. The second and third minutes came about because he had left out some agenda in the first set. If an agenda is missing in the minutes it could not go for payments as it could mean the agenda was not discussed. He stated that had he not done the second and third set of minutes then some departments would not have been able to make payments. There was nothing irregular in him making the other minutes. He denied conspiring with any of the defendants to defraud the county.
44.DW8, DAVID MAANGI KITUNGA testified on behalf of the 2nd Defendant who was abroad and not feeling well.
45.Paul Teido Mwazo who was the Assistant City Treasurer and whose duty was Approver 2 in the Internet Banking system stated that Grand Top Solutions was one of the suppliers to Kilifi County Government. He confirmed that on 23rd September 2015 he approved a payment for Kshs. 8,724,137.94 after he had confirmed that there was a purchase requisition, there was a purchase order, a delivery note and the supplier’s invoice. According to the payment voucher, the gross is Kshs. 9,200,000/= VAT of 6% IS 475,862.06 leaving a net payment to Grand Top of Kshs. 8,724,137.94.
46.He indicated that it would be unprocedural for the documents to be brought to him first before they went to Approver 1 as he was supposed to use the special reference number for him to search for the documents in the system. In this case the special reference number 2827 was appearing on the right hand side of the voucher. He stated that there was no provision for voiding and if it was to be done it should have been done in the IFMIS. He denied being informed that the payment/approval had been voided. He also denied being given a share of the money that was paid to Grand Top on 23rd September 2015.
47. He stated that the LSO (EXBP.21) was dated 18th May 2015 and the inspection and Acceptance Certificate (EXBP.3) was dated 19th May 2015, one day after the LSO. Meaning that Grand Top was issued with an LSO and the next day the works had been done and inspected which according to him was possible. He denied making any payment with serial number 2453 and contended that the payment of 1st July 2015 was not made by myself. According to IFMIS audit trail, Approver 2 was Riziki Matano.
48.DW 9, Benjamin Kai Chilumo, who was employed by the County stated that there were few challenges with the payment system where it would allow payments to be made without budget lines and there was sharing of passwords which should not have happened. He admitted to authoring the letter/memo dated 18th December 2015 whose subject is “Audit of the Below the line Transactions” due to an inability of the system to detect such transactions. The audit was conducted and by a report is dated 1st February 2015 made by Keziah Wambui, there was a recommendation that a forensic audit be conducted as there was issues with IFMIS but it was not done. They wrote to the EACC for the whole system to be audited.
49.It was his position that the first payment was made on 1st July 2015 and the second payment on 23rd September 2015. For the second payment Approver 1 was Raphael Kioli Mutiso and Approver 2 Paul Teido. He admitted that his signature was in the first LSO dated
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