The respondent was charged in the lower court with the following seven counts;
Count I
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act 2003, particulars being that between 29th December 2020 and 30th June 2021, within Nairobi County in the Republic of Kenya, being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd he failed to comply with the law relating to procurement to wit Section 44(2)(a) of the Public Procurement and Asset Disposal Act 2015 by engaging in a procurement process without an approved budget in relation to quotation 25/Kitchen items; quotation 16/Utensils; quotation 17/Kitchen items; quotation 18/Plates & cups and quotation 19/Cutlery & other items during the financial year 2020/2021.
Count II
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. The particulars were that between 29th December, 2020 and 30th June, 2021 within Nairobi City County in the Republic of Kenya, being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 45(3)(a) of the Public Procurement and Asset Disposal Act, 2015 by engaging in a procurement process which was not factored in the procurement plan in relation to Quotation 15/Kitchen Items; Quotation 16/Utensils; Quotation 17/Kitchen items, Quotation 18/Plates & cups and Quotation 19/Cutlery & other items during the financial year 2020/2021.
Count III
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003 with the particulars being that, between 4th February, 2021 and 3rd March 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 15/Kitchen items during the financial year 2020/2021.
Count IV
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. The particulars were that between 29th December 2020 and 4th March 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 16/Utensils during the financial year 2020/2021.
Count V
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003 particulars being that between 29th December 2020 and 12th February, 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 17/Kitchen items during the financial year 2020/2021.
Count VI
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes act, 2003. The particulars in this count were that between 18th May 2021 and 9th June, 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 18/Plates and cups during the financial year 2020/2021.
Count VII
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003, particulars being that between 12th May 2021 and 9th June, 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 19/Cutlery and other items during the financial year 2020/2021.
After the prosecution called a total of 24 witnesses, the trial court returned a verdict of no case to answer which prompted this appeal in which the appellant has raised the following grounds;
1. THAT the learned trial Magistrate erred in law and fact in acquitting the respondent against the overwhelming evidence adduced by the prosecution on behalf of the Republic in counts 1, 2, 3, 4, 5, 6 & 7 respectively.
2. THAT the learned trial Magistrate erred in law and in fact by finding that the Director of Public Prosecutions (DPP) had dismally failed to establish prima facie case against the respondent in counts 1, 2, 3, 4, 5, 6 & 7 respectively.
3. THAT the learned trial Magistrate erred in law and fact by finding that failure by the appellant to produce the budget for FY 2021/2022 marked as PMFI-5 was fatal, whereas the charges related to the budget for FY 2020/2022, which was produced as PEx-6(b).
4. THAT the learned trial Magistrate erred in law and fact by failing to find that the procurement of the kitchen items violated Section 44(2)(a) as read with Section 45(3)(a) of the Public Procurement and Asset Disposal Act, 2015.
5. THAT the learned trial Magistrate erred in law and fact by finding that there was an approved procurement plan being the Board Paper produced as PEx8(a) whereas the evidence produced by the appellant demonstrated that there was no approved plan for the procurement of the kitchen items which was in violation of Section 44 and 53 of the Public Procurement and Asset Disposal Act, 2015.
6. THAT the learned trial Magistrate erred in law and fact by finding that the establishment of the Ad Hoc Inspection & Acceptance Committee was not mandatory whereas the law required the respondent to either accept the goods or in his absence, he establishes an Ad Hoc Inspection Acceptance Committee.
7. THAT the learned trial Magistrate erred in law and fact by finding that the Standing Committee established under the Public Procurement & Disposal Act, 2005 (repealed) was lawfully extended whereas the Public Procurement and Asset Disposal Act, 2015 required the establishment of an Ad Hoc Inspection Acceptance Committee in accordance with Sections 4, 42, 45 of the Public Procurement & Asset Disposal Act 2015 and 53 Regulation 3 of the Public Procurement and Asset Disposal Regulations, 2020.
8. THAT the learned trial Magistrate erred in law and fact by misapplying and misinterpreting the provisions of Section 48 of the Public Procurement & Asset Disposal Act, 2015 as read with the Second Schedule of the Threshold Matrix in the Public Procurement and Asset Disposal Regulations, 2020.
9. THAT the learned trial Magistrate erred in law and fact in failing to find that the appellant had made a prima facie case as against the respondent based on the evidence tendered.
10. THAT the learned trial Magistrate erred in law and fact by in failing to place the respondent on his defence with regard to counts 1, 2, 3, 4, 5, 6 & 7.
11. THAT the learned trial Magistrate erred in law and fact by failing to consider the submissions by the appellant.
12. THAT such other grounds that may be adduced during the hearing of the appeal.
This is a first appeal and this court is required to re-evaluate the evidence produced before the trial court, re-analyse and re-consider the same and reach its own independent conclusion. However, the court should put into consideration the fact that it did not hear the witnesses and as such did not observe their demeanours and therefore give due allowance for that. This legal position has been encapsulated in many decided cases including Simon Taveta v Mercy Mutitu Njeru (2014) KECA 755 (KLR) where the Court of Appeal held that;
‘As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter.’
In order to comply with the above obligation, this court will reproduce the evidence of the witnesses then analyse it and make independent conclusion whether the prosecution had made a prima fascie case against the respondent which warranted that he be placed on his defence.
Prosecution’s evidence
The first prosecution witness was Josiah Kiprotich Magut who told the court that he was the Chairman of the Board of Bomas of Kenya (hereinafter referred to ‘BOK’) while the respondent was its Chief Executive Officer. The witness’s responsibility was to ensure execution of the Board's resolutions among other duties.
He added that before 2020, BOK had leased its Utamaduni restaurant to Utalii college but at some point, Utalii college exited and that during the time of the lease, BOK did not have a budget for the restaurant. He identified an approved detailed annual budget for the year 2021 and 2022 as PMFI 5. This budget was sent to the Ministry of Finance and approved.
PW1 added that in a Board meeting held on 23-09-2020 which he chaired, the issues which were in court were discussed. The heading of the minutes of the meeting which he identified was operations of Utamaduni restaurant which the board approved and recommended. They also approved and recommended procurement plan of the procurement is issue before the court. He also stated that after their approval, the items were purchased and the restaurant operationalised. He however claimed that they later came to have a budget which should have been a supplementary budget. He proceeded to produce the minutes of the board as an exhibit.
In cross-examination, he stated that he was arrested together with the respondent and procurement manager but the respondent was later charged alone. He admitted that it was during the covid-19 period and directions had been issued by the Ministry to reduce the staff in work places. He also confirmed that there was a budget and procurement plan for 2020/2021 which the board approved. He added that they needed to get food at the restaurant and therefore they needed to avail equipment like plates, cups, glasses, utensils, cutlery and other kitchen items.
Francis Simiran Nko'toi was the second witness who had joined BOK as a board member in 2014 until 2021. He was the chairman of the finance committee which reported to the full board on issues finance and acted as an oversight body for the Board of B.O.K. He stated that when he was questioned by EACC about the procurement in issue, he told them that it was an emergency as they needed to operationalize Utamaduni restaurant again after Utalii college exited. After passing through some committees, the recommendations to operationalise the restaurant reached the Board. He confirmed attending the meeting which approved the resumption of the restaurant. He added that the itemised budget was proposed and was categorical that the budget was not approved.
In cross-examination, he confirmed that he chaired the finance committee and that they approved the procurement plans. He added that they approved a special account for Utamaduni restaurant which needed plates, cups, fridge and equipment to enable it operate. He was referred to a document marked as MFI 3 which was a budget for 2020/2021 and which had provision for hot plates, deep friers and cooking gas burners. He also stated that the treasury had advised that they realign the budget to fit the operationalisation of the restaurant and additional funding of Kshs 59,000,000.00.
Pressed further, the witness stated that there were proposals for extension of the term of the existing committees but he did not attend meetings after September 2020 due to covid-19 restrictions but added that it was the duty of the management to operationalize the restaurant. He also stated that the Board directed the management to market Utamaduni restaurant at that time to allow the restaurant to get customers.
PW3 was Johnson Swenson Ekalil who was at BOK between 2013 and June 2021 as an acting food and beverage manager. He added that when EACC came for his statement, they wanted to know the procedure on how they requested for food and beverage items in their department which he gave. He narrated to the court the process of requisition which I do not consider relevant to this appeal as there is no contest that the items in the charge sheet were procured but it is important to note that during cross-examination, the witness confirmed that they had an inspection and acceptance committee which checked the items and received them and that Pamela Nyaga represented the food and beverage department in the committee.
The prosecution’s 4th witness was one Godfrey Owiti Ndiwati who worked for BOK between 2020 to 2021 as assistant property management officer. He was appointed by the respondent as a member of the evaluation committee alongside two others. His testimony was on evaluation of the quotations which I also consider irrelevant to the issues in this appeal.
Silas Kimutai Tum an accounts clerk with BOK was the fifth witness who participated in the procurement processes for the items in question in the evaluation committee. Similarly, his evidence is not relevant to this appeal as there is no dispute as to the fact that the items were procured neither are there any issues surrounding evaluation.
PW6, Jimmy Okidiangi the human resource manager told the court that he was in the tender opening committee as the chair. His evidence is also not important and has no bearing to what I am called upon to determine in this appeal as there is no dispute on evaluation or the fact that the respondent was the Chief Executive Officer of BOK.
PW7 was Pamela Gatanga Nyaga who told the court that she was a senior cook at BOK. She was a member of the inspection and acceptance committee having been appointed by the then CEO Ahmed Quresh who had retired. She produced a letter of appointment to the committee dated 20/6/2016. She confirmed that she was asked to receive goods and services to BOK. She went on to refer to several local purchase orders, invoices and delivery notes and narrated that the committee received the items in question. She added that she attended the committee and inspected the items upon which she signed and stamp.
In cross-examination, she stated that the goods were actually delivered and that the committee worked within the law. From her testimony in cross-examination, it is apparent that this was not the only procurement her committee was involved in. They used to inspect others the same way they did the one subject of the proceedings.
PW8 was Christine Melisa Mukoya Sakwa who worked in the stores desk and the chairperson of the inspection and acceptance committee having been appointed through a letter dated 23/7/2013. The letter appointed her to the said committee to inspect and accept all goods and services for BOK. She participated in inspection of the goods in question and signed and stamp after inspection and acceptance. Her detailed testimony was the same as that of PW7.
PW9 one Lydia Jerotich Jarus worked as a cashier in the food and beverage department of BOK. She added that between 2017 and February 2022, she was working in the stores under food and beverage department. Her testimony bordered on how she received the goods in question from the inspection and acceptance committee and kept them. Just like PW6 and PW7, her testimony does not touch on the issues I am to determine in this appeal.
Ambrose Riasi who was the acting supply chain manager was the tenth witness. He told the court that his roles were ensuring correct implementation of Procurement Act and coordinating and implementing procurement and strategic plans. He was the one overseeing procurement activities in the corporation.
Concerning the case before the court, he stated that he sent request for quotations for the items in question. After the tenders were opened and evaluated by the relevant committees, he recommended the tenders be awarded to the respective winners. According to him Regulation 91(2) of the Procurement Regulations 2020 required the accounting officer to appoint an inspection and acceptance committee. He added that due to covid-19 pandemic, they decided to continue using the committee that was there. He emphasised that there was a committee in place and produced exhibit 57 being a letter appointing the committee and stood ground that the committee was appointed in accordance with the law as the members’ letters had not been revoked.
In cross-examination, the witness stated that he was the one who prepared the quotations and had verified that they complied with the law and was categorical that there was a budget for the kitchen items. He also added that the items were in the procurement plan.
The witness also stated that none of the items went beyond the budget and that the accounting officer has no mandate to change his (the witness’s) opinion but could reject it. He also stated that there were enough funds for the procured items. He stated further that Kshs 8.4 million had been set aside for the items. The respondent was not involved in the budgeting which was done by the procurement and finance departments. He stated that all procurement laws were complied with and that he is the one who recommended to the CEO the members to be appointed to committees. He stated further that it was not mandatory to constitute an Ad Hoc Committee and he was the one who made a memo to the respondent to extend the life of the existing inspection and acceptance committee.
Arnold Omwansa was an accountant with BOK since January 2021. His testimony as the 11th prosecution witness was about the purchase of the items which had been done by the time he took office and he did not say much except identifying what he took over from the chairperson of evaluation committee. The same applied to PW12 one Timothy Munyoki Muimi who was working as a clerical officer in the finance department. His testimony is not relevant to this appeal as it touches on payment for the goods supplied which is not in dispute.
PW13 was Eva Kimeiyoo Njeri who told the court that she worked at the government press. Her testimony related to verification and certification of some gazette notices appointing PW1 and others as board members which is also irrelevant for now and I will not reproduce the evidence here.
Other witnesses whose testimony I considered not worthy of consideration in this appeal PW14 one Samuel Epara who was working as a security manager at credit bank since May 2019; PW15, a Mr Japheth Rona who worked in the department of food and beverages at Bomas of Kenya as a chef; Georgina Muthoni Kiarie who testified as PW 16 and who was an intern deployed to the stores; Haggai Onyago who worked at Stanbic Bank and who testified as PW17; PW18 a Mr. Gordon Linami who stated that he worked in Kenya Commercial Bank; PW19, a Mr. Patrick Nduvu Mwarithi who was working at the Kenya Commercial Bank; PW20, a Mr. Irungu Evans who was an employee of the Cooperative Bank, PW21, a Mr. Moses Wamugunda who was an accountant with the BOK at the time of the alleged offence and Mr. Felix Naftali Mutethia working with Business Registration Services who testified as PW23.
PW22 was one Cyrus Musyoki Makuyu. He told the court that he worked as a security guard at BOK and that he recorded statement with the EACC because he was in the inspection and acceptance committee of BOK between 2013 and 2021 having been appointed by the former CEO one Ahmed Qureshi. He added that the chair of the committee was Christine Salawa and that he did not know of any other committee. He stated that he participated in inspection and acceptance of some of the goods in question. He signed against delivery of those he participated in.
In cross-examination, he stated that the EACC was interested in him because he was a member of the inspection and acceptance committee. He confirmed that he worked during covid -19 period and the deliveries for the procured items was done. He also confirmed that the inspection and acceptance done in his absence was proper as the committee has the requisite quorum of three members at any given time.
The last witness for the prosecution was the investigating officer Mr. George Ligami Shamalla who told the court that in 202,1 EACC received a report of unlawful award of tenders and embezzlement of funds by BOK following which he was assigned the matter as the lead investigating officer. He analyses the case and wrote necessary letters requesting for documents and information from BOK.
Some of the documents and information he requested were for payments, reports, minutes, account statements, minutes for board meetings for 2018, 2019, 2020 2021, human resource manual, payroll for employees for 2018 to 2021, sales disbursements for 2018 to 2019, approved detailed and itemized budget for financial year 2021-2022, approved procured plans for 2020-2021 and 2021 2022 and procurement documents for the items in question in this matter. These documents were provided by the respondent.
He added that after getting the information, he established from the documents that the procurement process was flawed. The items were not captured in the budget for financial year 2020-2021 neither were they captured in the years’ procurement plan. He added that Utamadumi restaurant was not captured in the procurement plan and that in 2018. Utalii college and Bomas had a contract for 5 five years which was to end in 2023 but it ended during covid period due to financial constraints and Utalii moved out and left management of the Utamaduni restaurant. He stated that supplementary budgets were not produced in court.
The witness stated further that other than failure to capture the items in the budget, the respondent did not appoint committees to do procurement at Bomas. There were standing committees in place, but respondent did not appoint inspection and acceptance committee to carry out the exercise. He added that the respondent was summoned but he did not provide a letter appointing Ad Hoc committee for inspection and acceptance. The inspection committee in place had been appointed by Qureshi Mohamed and not the respondent.
The witness’s attempt to produce the annual approved budget for financial year 2020-2021 for BOK and the accompanying electronic evidence certificate was thwarted by an objection raised by the respondent’s advocate and sustained by the court vide ruling dated 12-03-2025 on grounds that PW24 was not the person who printed it neither was he the maker of the certificate. The maker of the certificate was available at the EACC and could be called to produce the same.
After the objection was sustained, the prosecution asked for an adjournment to reorganize its case and probably call more witness which adjournment was granted but immediately thereafter, the prosecution approached the court and agreed that the approved budget which had been marked as PMFI5 be left out and the following day, PW24 concluded his evidence in chief without producing the same.
In cross-examination, PW24 insisted that even if the items were purchased, they were not within the budget. He also admitted that PW4 said that there was a budget and added that the Cabinet Secretary for Tourism had done a budget for BOK which was approved. He agreed that during covid -19 period, things were unique and services were hampered.
He was shown a letter indicating that the inspection committee’s life had been extended and stated that the letter had not been provided to him and even if it had, it would not have changed the situation since it was against procurement. According to him, the issue was that the members of the acceptance and inspection committee were not appointed by the respondent and he could not extend the life of the committee because one cannot extend appointments he had not done.
He added that his proposal to the Office of the Director of Public Prosecutions were was that, 9 officers and the Chief Finance Officer be charged and not the CEO. He stated that the EACC’s letter proposing charges did not bear the name of the General Manager or the CEO. According to his recommendations, more than one officers were to be charged including officers from procurement, finance and management and the board members, but they were not charged.
He admitted that the law allows the procurement officer to advice the CEO before any decision is made to procure items. The head of procurement in this case was Mr. Riasi who was not charged. The witness added that the Board comes up with policies which are implemented by the management. The Board of BOK came up with a policy to operationalize restaurant and the management should have come up with a budget.
Analysis and determination
Having gone through the evidence presented by the prosecution, grounds of appeal herein and the lower court’s ruling, I find myself agreeing with the Honourable Magistrate in the manner she framed the issues for determination to wit;
a. Whether there was an approved budget for the financial year 2020/2021 and whether the impugned quotations were included in therein.
b. Whether the respondent engaged in procurement process that was not factored in the procurement plan for the year 2020/2021; and
c. Whether it was mandatory for the respondent to appoint an Ad Hoc inspection and acceptance committee in relation to the impugned quotations.
The first and second counts fell in the first and 2nd issue respectively while the 3rd to 7th counts fell under the 3rd issue. In respect of the 1st and 2nd issue, the respondent was accused of failing to comply with the law relating to procurement in particular Section 44(2)(a) and 25(3)(a) of the Public Procurement and Asset Disposal Act 2015 (hereinafter referred to as PPADA).
According to the prosecution there was no budget and procurement plan for kitchen items, utensils, plates, cups and cutlery for the financial year 2020/2021. If I understand the prosecution’s case well, the budget and procurement plan for the year did not contain the provision for these specified items.
I have gone through the proceedings of the trial court and it is clear to me that the prosecution witnesses especially PW1, PW2, PW7, PW8 and PW10 were empathic that there was a budget for the year. PW1 identified MFI as the budget for the year but as it would turn out, the same was never produced in court. I pick a statement by PW1 where he told the court in his evidence in chief that the Board approved and recommended that since Utalii college had left, they made provisions for the restaurant. This witness in his subsequent evidence kept on faltering on the issue. In one instance, he stated that he approved the expenditure in what he stated was supposed to be a supplementary budget then he changed and said that it was not approved and he signed just because he was chairing the Board.
PW2 is on record stating under cross-examination that they approved procurement plans. Failure to produce the approved plans was in my view fatal to the prosecution case. The documents were in their possession and by virtue of Section 112 of the Evidence Act, the prosecution was bound to proof its allegations the items purchased were not in the budget and procurement plan by producing of the approved budget and procurement plan for the year. In absence of this important document, this court presumes that had the plan been produced, it would have been adverse to the appellant’s case.
PW2 told the court that there were memos which stated that inspection and acceptance committees should be retained till a new board was put in place. This was confirmed by PW10 who was the head of procurement department and the author of the memos. In its submissions on the issue of lack of budget and procurement plan, the appellant has placed so much reliance on evidence of PW1 and PW2. In my view very little weight should be accorded the testimony of these witnesses as I find their testimony self-contradictory and one gets an impression that they were out to fix the respondent and exonerate themselves from a subject they had participated in and approved. It is not lost on me that PW1 who chaired the Board testified that he had been arrested with the respondent but later released. He was part of the discussion to operationalise the restaurant and the respondent being the Chief Executive Officer was an executor of the resolutions of the Board.
None of the witnesses except PW24 told the court that the items were missing in the procurement plan. I note that the budget for the year was not produced in evidence as attempt to do so was objected to by the defence and sustained by the court. There was no appeal against the trial court’s ruling on the objection on the production of the budget and the same cannot be a subject of this appeal. In a
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Count I
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act 2003, particulars being that between 29th December 2020 and 30th June 2021, within Nairobi County in the Republic of Kenya, being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd he failed to comply with the law relating to procurement to wit Section 44(2)(a) of the Public Procurement and Asset Disposal Act 2015 by engaging in a procurement process without an approved budget in relation to quotation 25/Kitchen items; quotation 16/Utensils; quotation 17/Kitchen items; quotation 18/Plates & cups and quotation 19/Cutlery & other items during the financial year 2020/2021.
Count II
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. The particulars were that between 29th December, 2020 and 30th June, 2021 within Nairobi City County in the Republic of Kenya, being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 45(3)(a) of the Public Procurement and Asset Disposal Act, 2015 by engaging in a procurement process which was not factored in the procurement plan in relation to Quotation 15/Kitchen Items; Quotation 16/Utensils; Quotation 17/Kitchen items, Quotation 18/Plates & cups and Quotation 19/Cutlery & other items during the financial year 2020/2021.
Count III
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003 with the particulars being that, between 4th February, 2021 and 3rd March 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 15/Kitchen items during the financial year 2020/2021.
Count IV
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. The particulars were that between 29th December 2020 and 4th March 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 16/Utensils during the financial year 2020/2021.
Count V
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003 particulars being that between 29th December 2020 and 12th February, 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 17/Kitchen items during the financial year 2020/2021.
Count VI
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes act, 2003. The particulars in this count were that between 18th May 2021 and 9th June, 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 18/Plates and cups during the financial year 2020/2021.
Count VII
Willful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003, particulars being that between 12th May 2021 and 9th June, 2021 within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and the Accounting Officer of a public body being Bomas of Kenya Ltd, he willfully failed to comply with the law relating to procurement to wit; Section 48 of the Public Procurement and Asset Disposal Act, 2015 by failing to appoint an Ad Hoc Inspection and Acceptance Committee in relation to Quotation 19/Cutlery and other items during the financial year 2020/2021.
After the prosecution called a total of 24 witnesses, the trial court returned a verdict of no case to answer which prompted this appeal in which the appellant has raised the following grounds;
1. THAT the learned trial Magistrate erred in law and fact in acquitting the respondent against the overwhelming evidence adduced by the prosecution on behalf of the Republic in counts 1, 2, 3, 4, 5, 6 & 7 respectively.
2. THAT the learned trial Magistrate erred in law and in fact by finding that the Director of Public Prosecutions (DPP) had dismally failed to establish prima facie case against the respondent in counts 1, 2, 3, 4, 5, 6 & 7 respectively.
3. THAT the learned trial Magistrate erred in law and fact by finding that failure by the appellant to produce the budget for FY 2021/2022 marked as PMFI-5 was fatal, whereas the charges related to the budget for FY 2020/2022, which was produced as PEx-6(b).
4. THAT the learned trial Magistrate erred in law and fact by failing to find that the procurement of the kitchen items violated Section 44(2)(a) as read with Section 45(3)(a) of the Public Procurement and Asset Disposal Act, 2015.
5. THAT the learned trial Magistrate erred in law and fact by finding that there was an approved procurement plan being the Board Paper produced as PEx8(a) whereas the evidence produced by the appellant demonstrated that there was no approved plan for the procurement of the kitchen items which was in violation of Section 44 and 53 of the Public Procurement and Asset Disposal Act, 2015.
6. THAT the learned trial Magistrate erred in law and fact by finding that the establishment of the Ad Hoc Inspection & Acceptance Committee was not mandatory whereas the law required the respondent to either accept the goods or in his absence, he establishes an Ad Hoc Inspection Acceptance Committee.
7. THAT the learned trial Magistrate erred in law and fact by finding that the Standing Committee established under the Public Procurement & Disposal Act, 2005 (repealed) was lawfully extended whereas the Public Procurement and Asset Disposal Act, 2015 required the establishment of an Ad Hoc Inspection Acceptance Committee in accordance with Sections 4, 42, 45 of the Public Procurement & Asset Disposal Act 2015 and 53 Regulation 3 of the Public Procurement and Asset Disposal Regulations, 2020.
8. THAT the learned trial Magistrate erred in law and fact by misapplying and misinterpreting the provisions of Section 48 of the Public Procurement & Asset Disposal Act, 2015 as read with the Second Schedule of the Threshold Matrix in the Public Procurement and Asset Disposal Regulations, 2020.
9. THAT the learned trial Magistrate erred in law and fact in failing to find that the appellant had made a prima facie case as against the respondent based on the evidence tendered.
10. THAT the learned trial Magistrate erred in law and fact by in failing to place the respondent on his defence with regard to counts 1, 2, 3, 4, 5, 6 & 7.
11. THAT the learned trial Magistrate erred in law and fact by failing to consider the submissions by the appellant.
12. THAT such other grounds that may be adduced during the hearing of the appeal.
This is a first appeal and this court is required to re-evaluate the evidence produced before the trial court, re-analyse and re-consider the same and reach its own independent conclusion. However, the court should put into consideration the fact that it did not hear the witnesses and as such did not observe their demeanours and therefore give due allowance for that. This legal position has been encapsulated in many decided cases including Simon Taveta v Mercy Mutitu Njeru (2014) KECA 755 (KLR) where the Court of Appeal held that;
‘As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter.’
In order to comply with the above obligation, this court will reproduce the evidence of the witnesses then analyse it and make independent conclusion whether the prosecution had made a prima fascie case against the respondent which warranted that he be placed on his defence.
Prosecution’s evidence
The first prosecution witness was Josiah Kiprotich Magut who told the court that he was the Chairman of the Board of Bomas of Kenya (hereinafter referred to ‘BOK’) while the respondent was its Chief Executive Officer. The witness’s responsibility was to ensure execution of the Board's resolutions among other duties.
He added that before 2020, BOK had leased its Utamaduni restaurant to Utalii college but at some point, Utalii college exited and that during the time of the lease, BOK did not have a budget for the restaurant. He identified an approved detailed annual budget for the year 2021 and 2022 as PMFI 5. This budget was sent to the Ministry of Finance and approved.
PW1 added that in a Board meeting held on 23-09-2020 which he chaired, the issues which were in court were discussed. The heading of the minutes of the meeting which he identified was operations of Utamaduni restaurant which the board approved and recommended. They also approved and recommended procurement plan of the procurement is issue before the court. He also stated that after their approval, the items were purchased and the restaurant operationalised. He however claimed that they later came to have a budget which should have been a supplementary budget. He proceeded to produce the minutes of the board as an exhibit.
In cross-examination, he stated that he was arrested together with the respondent and procurement manager but the respondent was later charged alone. He admitted that it was during the covid-19 period and directions had been issued by the Ministry to reduce the staff in work places. He also confirmed that there was a budget and procurement plan for 2020/2021 which the board approved. He added that they needed to get food at the restaurant and therefore they needed to avail equipment like plates, cups, glasses, utensils, cutlery and other kitchen items.
Francis Simiran Nko'toi was the second witness who had joined BOK as a board member in 2014 until 2021. He was the chairman of the finance committee which reported to the full board on issues finance and acted as an oversight body for the Board of B.O.K. He stated that when he was questioned by EACC about the procurement in issue, he told them that it was an emergency as they needed to operationalize Utamaduni restaurant again after Utalii college exited. After passing through some committees, the recommendations to operationalise the restaurant reached the Board. He confirmed attending the meeting which approved the resumption of the restaurant. He added that the itemised budget was proposed and was categorical that the budget was not approved.
In cross-examination, he confirmed that he chaired the finance committee and that they approved the procurement plans. He added that they approved a special account for Utamaduni restaurant which needed plates, cups, fridge and equipment to enable it operate. He was referred to a document marked as MFI 3 which was a budget for 2020/2021 and which had provision for hot plates, deep friers and cooking gas burners. He also stated that the treasury had advised that they realign the budget to fit the operationalisation of the restaurant and additional funding of Kshs 59,000,000.00.
Pressed further, the witness stated that there were proposals for extension of the term of the existing committees but he did not attend meetings after September 2020 due to covid-19 restrictions but added that it was the duty of the management to operationalize the restaurant. He also stated that the Board directed the management to market Utamaduni restaurant at that time to allow the restaurant to get customers.
PW3 was Johnson Swenson Ekalil who was at BOK between 2013 and June 2021 as an acting food and beverage manager. He added that when EACC came for his statement, they wanted to know the procedure on how they requested for food and beverage items in their department which he gave. He narrated to the court the process of requisition which I do not consider relevant to this appeal as there is no contest that the items in the charge sheet were procured but it is important to note that during cross-examination, the witness confirmed that they had an inspection and acceptance committee which checked the items and received them and that Pamela Nyaga represented the food and beverage department in the committee.
The prosecution’s 4th witness was one Godfrey Owiti Ndiwati who worked for BOK between 2020 to 2021 as assistant property management officer. He was appointed by the respondent as a member of the evaluation committee alongside two others. His testimony was on evaluation of the quotations which I also consider irrelevant to the issues in this appeal.
Silas Kimutai Tum an accounts clerk with BOK was the fifth witness who participated in the procurement processes for the items in question in the evaluation committee. Similarly, his evidence is not relevant to this appeal as there is no dispute as to the fact that the items were procured neither are there any issues surrounding evaluation.
PW6, Jimmy Okidiangi the human resource manager told the court that he was in the tender opening committee as the chair. His evidence is also not important and has no bearing to what I am called upon to determine in this appeal as there is no dispute on evaluation or the fact that the respondent was the Chief Executive Officer of BOK.
PW7 was Pamela Gatanga Nyaga who told the court that she was a senior cook at BOK. She was a member of the inspection and acceptance committee having been appointed by the then CEO Ahmed Quresh who had retired. She produced a letter of appointment to the committee dated 20/6/2016. She confirmed that she was asked to receive goods and services to BOK. She went on to refer to several local purchase orders, invoices and delivery notes and narrated that the committee received the items in question. She added that she attended the committee and inspected the items upon which she signed and stamp.
In cross-examination, she stated that the goods were actually delivered and that the committee worked within the law. From her testimony in cross-examination, it is apparent that this was not the only procurement her committee was involved in. They used to inspect others the same way they did the one subject of the proceedings.
PW8 was Christine Melisa Mukoya Sakwa who worked in the stores desk and the chairperson of the inspection and acceptance committee having been appointed through a letter dated 23/7/2013. The letter appointed her to the said committee to inspect and accept all goods and services for BOK. She participated in inspection of the goods in question and signed and stamp after inspection and acceptance. Her detailed testimony was the same as that of PW7.
PW9 one Lydia Jerotich Jarus worked as a cashier in the food and beverage department of BOK. She added that between 2017 and February 2022, she was working in the stores under food and beverage department. Her testimony bordered on how she received the goods in question from the inspection and acceptance committee and kept them. Just like PW6 and PW7, her testimony does not touch on the issues I am to determine in this appeal.
Ambrose Riasi who was the acting supply chain manager was the tenth witness. He told the court that his roles were ensuring correct implementation of Procurement Act and coordinating and implementing procurement and strategic plans. He was the one overseeing procurement activities in the corporation.
Concerning the case before the court, he stated that he sent request for quotations for the items in question. After the tenders were opened and evaluated by the relevant committees, he recommended the tenders be awarded to the respective winners. According to him Regulation 91(2) of the Procurement Regulations 2020 required the accounting officer to appoint an inspection and acceptance committee. He added that due to covid-19 pandemic, they decided to continue using the committee that was there. He emphasised that there was a committee in place and produced exhibit 57 being a letter appointing the committee and stood ground that the committee was appointed in accordance with the law as the members’ letters had not been revoked.
In cross-examination, the witness stated that he was the one who prepared the quotations and had verified that they complied with the law and was categorical that there was a budget for the kitchen items. He also added that the items were in the procurement plan.
The witness also stated that none of the items went beyond the budget and that the accounting officer has no mandate to change his (the witness’s) opinion but could reject it. He also stated that there were enough funds for the procured items. He stated further that Kshs 8.4 million had been set aside for the items. The respondent was not involved in the budgeting which was done by the procurement and finance departments. He stated that all procurement laws were complied with and that he is the one who recommended to the CEO the members to be appointed to committees. He stated further that it was not mandatory to constitute an Ad Hoc Committee and he was the one who made a memo to the respondent to extend the life of the existing inspection and acceptance committee.
Arnold Omwansa was an accountant with BOK since January 2021. His testimony as the 11th prosecution witness was about the purchase of the items which had been done by the time he took office and he did not say much except identifying what he took over from the chairperson of evaluation committee. The same applied to PW12 one Timothy Munyoki Muimi who was working as a clerical officer in the finance department. His testimony is not relevant to this appeal as it touches on payment for the goods supplied which is not in dispute.
PW13 was Eva Kimeiyoo Njeri who told the court that she worked at the government press. Her testimony related to verification and certification of some gazette notices appointing PW1 and others as board members which is also irrelevant for now and I will not reproduce the evidence here.
Other witnesses whose testimony I considered not worthy of consideration in this appeal PW14 one Samuel Epara who was working as a security manager at credit bank since May 2019; PW15, a Mr Japheth Rona who worked in the department of food and beverages at Bomas of Kenya as a chef; Georgina Muthoni Kiarie who testified as PW 16 and who was an intern deployed to the stores; Haggai Onyago who worked at Stanbic Bank and who testified as PW17; PW18 a Mr. Gordon Linami who stated that he worked in Kenya Commercial Bank; PW19, a Mr. Patrick Nduvu Mwarithi who was working at the Kenya Commercial Bank; PW20, a Mr. Irungu Evans who was an employee of the Cooperative Bank, PW21, a Mr. Moses Wamugunda who was an accountant with the BOK at the time of the alleged offence and Mr. Felix Naftali Mutethia working with Business Registration Services who testified as PW23.
PW22 was one Cyrus Musyoki Makuyu. He told the court that he worked as a security guard at BOK and that he recorded statement with the EACC because he was in the inspection and acceptance committee of BOK between 2013 and 2021 having been appointed by the former CEO one Ahmed Qureshi. He added that the chair of the committee was Christine Salawa and that he did not know of any other committee. He stated that he participated in inspection and acceptance of some of the goods in question. He signed against delivery of those he participated in.
In cross-examination, he stated that the EACC was interested in him because he was a member of the inspection and acceptance committee. He confirmed that he worked during covid -19 period and the deliveries for the procured items was done. He also confirmed that the inspection and acceptance done in his absence was proper as the committee has the requisite quorum of three members at any given time.
The last witness for the prosecution was the investigating officer Mr. George Ligami Shamalla who told the court that in 202,1 EACC received a report of unlawful award of tenders and embezzlement of funds by BOK following which he was assigned the matter as the lead investigating officer. He analyses the case and wrote necessary letters requesting for documents and information from BOK.
Some of the documents and information he requested were for payments, reports, minutes, account statements, minutes for board meetings for 2018, 2019, 2020 2021, human resource manual, payroll for employees for 2018 to 2021, sales disbursements for 2018 to 2019, approved detailed and itemized budget for financial year 2021-2022, approved procured plans for 2020-2021 and 2021 2022 and procurement documents for the items in question in this matter. These documents were provided by the respondent.
He added that after getting the information, he established from the documents that the procurement process was flawed. The items were not captured in the budget for financial year 2020-2021 neither were they captured in the years’ procurement plan. He added that Utamadumi restaurant was not captured in the procurement plan and that in 2018. Utalii college and Bomas had a contract for 5 five years which was to end in 2023 but it ended during covid period due to financial constraints and Utalii moved out and left management of the Utamaduni restaurant. He stated that supplementary budgets were not produced in court.
The witness stated further that other than failure to capture the items in the budget, the respondent did not appoint committees to do procurement at Bomas. There were standing committees in place, but respondent did not appoint inspection and acceptance committee to carry out the exercise. He added that the respondent was summoned but he did not provide a letter appointing Ad Hoc committee for inspection and acceptance. The inspection committee in place had been appointed by Qureshi Mohamed and not the respondent.
The witness’s attempt to produce the annual approved budget for financial year 2020-2021 for BOK and the accompanying electronic evidence certificate was thwarted by an objection raised by the respondent’s advocate and sustained by the court vide ruling dated 12-03-2025 on grounds that PW24 was not the person who printed it neither was he the maker of the certificate. The maker of the certificate was available at the EACC and could be called to produce the same.
After the objection was sustained, the prosecution asked for an adjournment to reorganize its case and probably call more witness which adjournment was granted but immediately thereafter, the prosecution approached the court and agreed that the approved budget which had been marked as PMFI5 be left out and the following day, PW24 concluded his evidence in chief without producing the same.
In cross-examination, PW24 insisted that even if the items were purchased, they were not within the budget. He also admitted that PW4 said that there was a budget and added that the Cabinet Secretary for Tourism had done a budget for BOK which was approved. He agreed that during covid -19 period, things were unique and services were hampered.
He was shown a letter indicating that the inspection committee’s life had been extended and stated that the letter had not been provided to him and even if it had, it would not have changed the situation since it was against procurement. According to him, the issue was that the members of the acceptance and inspection committee were not appointed by the respondent and he could not extend the life of the committee because one cannot extend appointments he had not done.
He added that his proposal to the Office of the Director of Public Prosecutions were was that, 9 officers and the Chief Finance Officer be charged and not the CEO. He stated that the EACC’s letter proposing charges did not bear the name of the General Manager or the CEO. According to his recommendations, more than one officers were to be charged including officers from procurement, finance and management and the board members, but they were not charged.
He admitted that the law allows the procurement officer to advice the CEO before any decision is made to procure items. The head of procurement in this case was Mr. Riasi who was not charged. The witness added that the Board comes up with policies which are implemented by the management. The Board of BOK came up with a policy to operationalize restaurant and the management should have come up with a budget.
Analysis and determination
Having gone through the evidence presented by the prosecution, grounds of appeal herein and the lower court’s ruling, I find myself agreeing with the Honourable Magistrate in the manner she framed the issues for determination to wit;
a. Whether there was an approved budget for the financial year 2020/2021 and whether the impugned quotations were included in therein.
b. Whether the respondent engaged in procurement process that was not factored in the procurement plan for the year 2020/2021; and
c. Whether it was mandatory for the respondent to appoint an Ad Hoc inspection and acceptance committee in relation to the impugned quotations.
The first and second counts fell in the first and 2nd issue respectively while the 3rd to 7th counts fell under the 3rd issue. In respect of the 1st and 2nd issue, the respondent was accused of failing to comply with the law relating to procurement in particular Section 44(2)(a) and 25(3)(a) of the Public Procurement and Asset Disposal Act 2015 (hereinafter referred to as PPADA).
According to the prosecution there was no budget and procurement plan for kitchen items, utensils, plates, cups and cutlery for the financial year 2020/2021. If I understand the prosecution’s case well, the budget and procurement plan for the year did not contain the provision for these specified items.
I have gone through the proceedings of the trial court and it is clear to me that the prosecution witnesses especially PW1, PW2, PW7, PW8 and PW10 were empathic that there was a budget for the year. PW1 identified MFI as the budget for the year but as it would turn out, the same was never produced in court. I pick a statement by PW1 where he told the court in his evidence in chief that the Board approved and recommended that since Utalii college had left, they made provisions for the restaurant. This witness in his subsequent evidence kept on faltering on the issue. In one instance, he stated that he approved the expenditure in what he stated was supposed to be a supplementary budget then he changed and said that it was not approved and he signed just because he was chairing the Board.
PW2 is on record stating under cross-examination that they approved procurement plans. Failure to produce the approved plans was in my view fatal to the prosecution case. The documents were in their possession and by virtue of Section 112 of the Evidence Act, the prosecution was bound to proof its allegations the items purchased were not in the budget and procurement plan by producing of the approved budget and procurement plan for the year. In absence of this important document, this court presumes that had the plan been produced, it would have been adverse to the appellant’s case.
PW2 told the court that there were memos which stated that inspection and acceptance committees should be retained till a new board was put in place. This was confirmed by PW10 who was the head of procurement department and the author of the memos. In its submissions on the issue of lack of budget and procurement plan, the appellant has placed so much reliance on evidence of PW1 and PW2. In my view very little weight should be accorded the testimony of these witnesses as I find their testimony self-contradictory and one gets an impression that they were out to fix the respondent and exonerate themselves from a subject they had participated in and approved. It is not lost on me that PW1 who chaired the Board testified that he had been arrested with the respondent but later released. He was part of the discussion to operationalise the restaurant and the respondent being the Chief Executive Officer was an executor of the resolutions of the Board.
None of the witnesses except PW24 told the court that the items were missing in the procurement plan. I note that the budget for the year was not produced in evidence as attempt to do so was objected to by the defence and sustained by the court. There was no appeal against the trial court’s ruling on the objection on the production of the budget and the same cannot be a subject of this appeal. In a
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