NAIROBI, Kenya, Jun 21 – The Director of Public Prosecutions (DPP) Keriako Tobiko has asked the High Court to dismiss a case in which former Information Permanent Secretary Bitange Ndemo is seeking to stop his prosecution over the controversial sale of Malili Ranch that led to the loss of Sh179 million.
The DPP says that evidence gathered will prove that the ex-PS fraudulently benefited from the illegal transaction.
The DPP says it is clear from his statements and police investigations on the role Ndemo played in the transaction and knew the sale was unlawful, irregular and was part of the conspiracy.
Tobiko claims that Ndemo through the application is seeking some illegal and unconstitutional immunity or insulation against a lawful prosecution.
“The applicant has not demonstrated that in making the decision to prefer criminal charges against him, the DPP acted without or in excess of the powers conferred upon him,” states the DPP.
According to Tobiko, Ndemo has also failed to demonstrate how his rights have been or will be infringed or damaged as result of the indictment.
The DPP insists that in deciding to prosecute him he acted independently, not capriciously or in bad faith.
Ndemo insists the trial against him is a gross violation of his constitutional rights, ill-founded since charges levelled against him are based on new allegations because the DPP had closed the case file.
It is his argument that investigators have never given him an opportunity to give his side of the story over the fresh allegations.
He claims that people recommended for prosecution following the assertions have been shielded in order to embarrass and humiliate him.
Others he says, are being used as witnesses in order to bar him from defending himself.
Ndemo has denied that on June 7, 2009 at Teleposta in Nairobi being the PS and accounting officer at the Ministry of ICT, failed to willingly comply with the law relating to procurement by signing an agreement for the purchase of 5,000 acres from Malili Ranch Limited by the ministry.
It is alleged that he signed the tender yet he was aware the latter was awarded by the ministerial tender committee without being subjected to financial evaluation.
The former PS also faces abuse of office charges for failing to comply with the law relating to procurement.
He was charged with the offenses of wilful failure to comply with procurement laws, abuse of office, stealing and conspiracy to commit a felony in September 2014.
The government will build the Konza ICT city on the 5,000 acres.
In May, 66 former shareholders complained to the CID that they had not received their money even after the government took possession of Malili.