NAIROBI, Kenya- The High Court has dismissed five applications by Kiambu Governor Kimani Wamatangi and other defendants seeking to have the Ethics and Anti-Corruption Commission’s Sh813.1 million recovery suit struck out.
In a ruling delivered on October 1, Justice Rose Ougo said the allegations in EACC’s case—including fraud, misrepresentation and the use of forged or falsified tender documents—needed to be tested through evidence at a full hearing.
The decision allows the recovery suit to proceed.
It does not determine that Wamatangi or the other defendants are liable for the alleged irregularities.
EACC is seeking Sh813,145,532.40 from the defendants jointly and severally, as well as the forfeiture of funds held in the bank accounts of five companies named in the case.
EACC alleges influence in road tenders
The suit concerns payments to the five companies for road contracts awarded by the Kenya Urban Roads Authority, the Kenya Rural Roads Authority and the Kenya National Highways Authority.
EACC alleges that Wamatangi, while serving as a senator and chairing the Senate Committee on Roads, Transport and Housing, used his position to influence tender awards to companies in which he had a beneficial interest.
The commission also claims that false or forged documents were used to obtain the contracts.
Wamatangi denied wrongdoing in his application to have the case against him struck out.
He said he was not a director of the companies, had not taken part in preparing or submitting their tenders and had not communicated with officers of the road agencies about the contracts.
He also argued that parliamentary privilege protected conduct connected to his work as a senator, and that the recovery case duplicated issues raised in a separate constitutional petition.
Court says privilege does not cover alleged unlawful conduct
Justice Ougo rejected the argument that parliamentary privilege barred the suit.
She said the protections in the Parliamentary Powers and Privileges Act were meant to protect the lawful functions of Parliament and its members, not to shield alleged unlawful conduct outside parliamentary proceedings.
The judge found that the allegations against Wamatangi concerned claims that he used his position to secure a personal benefit and failed to avoid a conflict of interest.
She ruled that those claims were not protected by parliamentary privilege.
The court also rejected Wamatangi’s argument that the case was sub judice, finding he had not provided sufficient evidence that the parties and issues in the recovery suit were the same as those in the pending constitutional petition.
The ruling noted that the orders in that petition were said to prevent the Director of Public Prosecutions from charging Wamatangi and did not address the asset-forfeiture issues in the EACC case.
Directors remain in the case for now
Several company directors had separately asked the court to remove them from the suit, arguing that they had been joined only because of their positions in the companies and that no wrongdoing had been specifically pleaded against them personally.
The defendants also relied on the principle that companies have a separate legal identity from their directors and shareholders.
EACC argued that the directors were relevant to the case and that evidence was needed to determine whether the companies’ corporate veil could be lifted.
Justice Ougo said it was too early in the proceedings to decide whether the directors could be held personally liable.
The court found that the pleadings included allegations of fraud and falsified documents connected to the tender awards, which must be tested at trial.
The judge cautioned that EACC would still have to prove its case. If the evidence does not establish a cause of action against the defendants in their personal capacity, the court may dismiss the claims against them.
The court dismissed all five applications, with costs to be determined in the main suit.
The recovery case will now proceed to hearing.
