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INTHE HIGH COURT OF KENYA AT NAIROBI MILIMANLLAW COURTS CIVIL. DIVISION MISCELLANOUS APPLICATION NO, 601. 0F 2015 \, IN THE MATTER OF: AN APPLICATION BY THE ASSETS RECOVERYTAGENCY FOR ORDERS UNDER SECTIONS 81, 82 AND 87 OF THE PROCEEDS OF CRIME AND ANTI-MONEY LAUNDERING ACT READ WITH ORDER 51 OF THE CIVIL PROCEDURE RULES TO PROHIBIT THE TRANSFER AND OR DISPOSAL OFF OR OTHER DEALINGS (HOWSOEVER DESCRIBED) WITH THE PROPERTY KNOWN AS MAISONETTE HOUSE AT KASARANI LR NO 20857/190, PLOT NUMBER LR. NO RUIRU JUJA EAST BLOCK 2/360, MOTOR VEHICLE TOYOTA PRADO REGISTRATION NUMBER KCD 536P, REGISTRATION NUMBER KCE 874R STATION WAGON ‘TOYOTA PRADO BETWEEN ‘THE ASSETS RECOVERY AGENCY. APPLICANT AND SAMWEL WACHENJE alias SAM MWADIME SUSAN MKIWA MNDANYIL VANDAMME JOHN cscs ANTHONY KIARA GETHL AU caanree waneo cores -1* RESPONDENT 284 RESPONDENT 3-4 RESPONDENT . 4 RESPONDENT s* RESPONDENT REPLYING AFFIDAVIT 1 ANNE WAIGURU a resident of the County of Nairobi and of P.O. Box Sarfiiber 2267 ~ 00621, Village Market, Nairobi do hereby. ‘make oath and state as follows 4, THAT | ama female adult of sound mind and citizen of the Republic of Kenya capable of swearing this affidavit. 2. THAT I am the immediate former Cabinet Secretary of the Ministry of Devolution and Planning serving from 16% May 2013 to 20% November 2015. 3, THAT the National Youth Service (NYS) was one of the institutions that was under the Ministry of Devolution and Planning. 4, THAT I was made aware through the media of an affidavit made by one Josephine Kabura in relation to court proceedings for the recovery of assets, acquired with the fraudulently processed Kshs 791 million from the National Youth Service 5. THAT in the aforementioned affidavit, Josephine Kabura alleges that we are* friends, have met and communicated on several occasions including purporting to assist her in her business endeavors at the Ministry of Devolution and Planning THAT I do not know Josephine Kabura and she has never served me in any capacity. THAT if indeed Josephine had ever been my friend or served me in any capacity, there would be evidence of communication with her on routine issues even before she started the purported business with NYS. THAT there is no evidence of any communication between me and her and yet she purports to have been my friend hefore the said NYS business and the fraudulent transactions ‘THAT 1 have never met or communicated with Josephine Kabura either in person or through telephone, 10.THAT Josephine Kabura has never been to my residence. Indeed the residence she purports to have met with me in in August 2015 is a house 1 had vacated 7 months earlier in February 2015 and which has been vacant since without even a single unit of furniture, I have never even been back to the House since | vacated it LLTHAT it is clear from the contents of her affidavit that the material she depones to is gathered from sources who know some things about me, from media and official data and not from her personal knowledge of me 12. THAT it is this lack of personal knowledge of me that makes her get numerous basic facts about me absolutely wrong, 13, THAT since I do not know her and indeed have never met her, I have never introduced Josephine Kabura to any of my relatives or any staff at the Ministry. 14. THAT I have not had any dealings whatsoever with Josephine Kabura or her associates. 15. THAT I do not know one Raphael Ndunda Family Bank, Kenya Tea Development Authority Branch and have never recommended him to Josephine or to anyone to open any account at the said branch or any other, bank for any matter. 16. THAT my interactions with Mr. Mutahi Ngunyi who she quotes in her affidavit were based on the restructuring of the National Youth Service. Mr. Ngunyi was representing a consulting firm known as The Consulting Firm (TCH) that had been contracted by the Ministry to assist with the restructuring of the NYS. 17.THAT I have never therefore met with Josephine Kabura with the said Mutahi Ngunyi 18, THAT I have never met Josephine with any of my officers, Hassan Noor, Adan Harakhe or any other officer as alleged in her affidavit. Indeed at the time mentioned in the affidavit I did not know Mr Harakhe since he had not joined the Ministry. 19, THAT I never met Josephine with Maina Kamore who is not even known to me 20. THAT whereas [ have met Mr Mwaniki Munuhe in the course of my duties, | have never met him with Josephine as alleged in the affidavit or at all, 21, THAT 1 have briefly interacted with Mr. Joseph Mugwanja in his capacity as the Head of the Banking Fraud Investigations Department (BFID} 22, THAT | have never discussed the specific matter of josephine Kabura and investigations on her with Mr Mugwanja 23.THAT | only received reports from the Banking Fraud Investigations Department of the Directorate of Criminal Investigations in my official capacity since | am the one who had requested for investigations. 24, THAT I have not in any way whatsoever tried to influence investigations into the NYS fraud. 25, THAT what | know of Josephine Kabura is that she was involved in the fraud at the National Youth Service, which information was through the reports of the Directorate of Criminal Investigations and the media. 26.THAT her affidavit is a figment of her imagination, calculated to divert attention from the real architects of the NYS fraud and to attract media attention for nefarious purposes. 27. THAT what | wish to state regarding the NYS fraud, which shows my total non-involvement, and also points to the true architects of the fraud is as follows. 28. THAT the Ag. Senior Deputy Director General Mr. Adan Harakhe brought to my attention the attempted fraud of Kshs 828,600,000 at the NYS through the fraudulent use of his IFMIS password, | advised him to report the same to the DCI as it was a cybercrime. 29. THAT the Ag. Senior Deputy Director General Mr. Adan Harakhe wrote to the CID on 26 May 2015 requesting for investigations into the unauthorized use of his password to commit a total of Kshs 828, 600,000. 30. THAT on 3 June 2015, Mr. Harakhe informed me in writing that he was directed by the then Principal Secretary of Planning, Eng. Peter Mangi'ti and the then Director General, Dr. Nelson Githinji to allow the matter to be fa handled departmentally within the Ministry instead of involving the DCI (Annex A.W. 1) 31, THAT Mr. Harakhe intimated in the above memo that Eng. Peter Mangiiti introduced him to one Ben Gethi on 27% May 2015 a day after he wrote to the DCI requesting for investigations into the unauthorised use of his IFMIS password, 32. THAT during the said meeting at Eng. Mangiit’s office, Mr. Ben Gethi tried to intimidate Mr. Harakhe into allowing of funds to go through the IPMIS system, 33. THAT the two also tried to intimidate Mr. Harakhe from involving the DCI in investigations. 34.THAT upon discovering that no progress had heen made, I wrote to the Directorate of Criminal Investigations on S** of June 2015, requesting them to investigate what was identified as a case of potential fraud using identity theft in the NYS IFMIS system. The specific request was to investigate the total of Ksh 828,600,000 that had been committed using the password of Me. Adan Harakhe, the Ag, Senior Deputy Director General. Mr. Harakhe had Falses the red flag on the suspicious transactions, after the supplementary budget was loaded onto the system. 35.THAT on 19% June 2015, Mr. Harakhe wrote to me a memo detailing Gifficulties in stopping the illegal transactions on IEMIS, 36.THAT Mr. Harakhe stated that on 14% june 2015 Eng, Peter Mangiti summoned him to Nakumatt Junction at around 7:00 p.m. 37. THAT Eng. Peter Mang’iti was together with a Mr. Ben Gethi 38.THAT Eng. Mangiti and Mr. Ben Gethi told him that he had become a Stumbling block and if he doesn’t cooperate that they would fx him through the DCI or litigation by the suppliers, 38-THAT the two told him that Eng, Mangiiti would allow him to stop 200 million from going through the system and that Mr. Harakhe should regularize the rest to enable the same to go through, ‘40, THAT Mr. Harakhe did not succumb to the intimidation by ENE Mangiti and pen Gethi and that the stopping of the transactions was eventually done on gt June 2015 AA,THAT the preliminary DCI repors june revealed that indeed there was fraud and extensive collusion throughout the process chain, These included double billing, payments for non-detivered goods and and outrageous inflation of prices: Ag-THAT the DCI report identified 6 companies owned by 3 individuals in various combinations that would have teen the beneficiaries of the money that was to be fraudulently paid out from NYS. 4a-THAT Josephine Kabura is a common pirector in 3 ofthe 6 companies whose fraudulent payments amounting f° ehs 695,400,000 were stopped: 44, THAT the DCI disclosed thar the ‘yank accounts for the companies Were operated by one of the individuals a Ms. Josephine Kabura Irani 25 the sole signatory. {AS-THAT the DCI report disclosed that al) accounts were found to have 2 267° ‘balance at the time of investigation . A6-THAT the DCI report disclosed that the six companies were not procured through the Ministry of Devolution and Planning AT-TMAT the DCI report disclosed that the six companies were procured through the Supply Branch based at the Ministry of Lands, Housing and Urban Development. The NYS then proceeded to issue Local Purchase orders without involvement of the Ministry- 4e-THAT it is clear from the DCI report that my request for investigations stopped the fraudulent payments T° companies associated with the said sjosephine Kabura amounting to not Jess than 695,400,000 which partially explains her and her backers animus towards me 49.THAT the DCI in a subsequent briefing disclosed that on further investigations, itwas found that similar hefty amounts had been paid into the accounts associated with Ms. Kabura, totalling over 791 Million between December 2014 and April 2025 prior to my request for investigation, The money was withdrawn in cash immediately it got into the account 50, THAT the above payments were paid when the former Director General of NYS, Dr. Nelson Githinji was the AIE holder. §1.THAT on 10% July 2015 during the course of DCI investigations, Mr. Aden Harakhe informed me through a memo that there had been various attempts by political actors to intimidate him. (Annex AW 2) 52, THAT the said memo stated that on 16% June 2015 Mr Aden Harakhe was texted and called by Mr. Aden Duale who advised him that he required political support and that leaders from his region came from URP. Mr, Duale warned that he needed to be careful lest he is used and dumped by the other side of the coalition. 53. THAT the said memo stated that on 9% July 2015, Senator Kipchumba Murkomen visited Mr. Harakhe's office accompanied by a Mr Kimutai at the NYS Headquarters along Thika Road. 54.THAT Senator Murkomen said that Eng, Mangiiti had referred him to Mrs Harakhe. 55. THAT Senator Murkomen stated that he represented his clients who were the merchants whose funds had been stopped at IFMIS and whose bank accounts were frozen by the DCI 56. THAT the bank accounts that had been frozen were mainly those associated with Josephine Kabura and Ben Gethi 57. THAT around the same time during the month of July, Senator Murkomen visited my office and informed me that he represents his clients who were the merchants whose funds had been stopped at IFMIS. 58, THAT Senator Murkomen passed the message from his clients stating that | should tell DCI to drop the investigations and said I would face unspecified consequences ifI did not adhere to these demands. 59, THAT I refused to budge and pushed the DCI to conclude investigations. Soon thereafter proceedings for my impeachment by an MP from the URP te associate 2: THAT the FePOrS sndicated that there Were lose relat vqbet and Ben cent and indeed some of the payments made PY Gethl include a payment to Mr RIDES fe were constant ¢ pet investigations ther 1. Farouk Kibet Ben Gethi and M1 swith about 180 ras between MI me lasting for hours petween the WO th Eng, Peter Mani ‘phone calls $0 communication #1 64. THAT Ben Getht was in constant of DCT investigations uring the course stant communica 65, THAT Mr. Farouk go. THAT Mr. Farouk Kil Kibet was in cons sion with Eng. Mane pet was in constant communication with THE former NYS pirector General Dr- ring the course of DC vestigations 5 alleged, there indeed if | had been involved a sn me and these principal actors which there isnt of the DCI briefings: 1 my opinion Ms. josephine be a front, t0 Nelson Githinji da would be evidence of 67. THAT 4 continues tO a broader, more Kabura was only just an powerful cartel with various peneficiaries: from the political establishment and the bureaucracy: faciitated by officers FO the Ministry. ithout any 69. THAT } believe that the constant accusations foundation are ™ litical ends, to P eant to achieve P unis me for StopPInE the tion from the real fraudsters and thelr fraud at NYS and 0 divert atte! | packers. 70. THAT I played no F | rave become a convenient scapegoat ole whatsoever in the fraudulent activities a the NYS but ‘7TA.THAT during my tenure as the Cabinet Secretary | did all within my powers to ensure observance of the requisite laws. 72. THAT indeed [had found out that the project costs for the Kibera project was inflated in early 2015. 73. THAT in February 2015 1 wrote amemo to the then Principal Secretary Eng. Mangiti instructing him to ensure compliance with relevant laws and that Kibera project costs and all other projects for that matter are within market range. 74. THAT my actions Jed to the suspension ‘of the Supervisor of the Kibera project and the Head of Procurement of NYS. 45,THAT a revised estimate of project costs was developed after my intervention in February 2015 resulting into reduced costs by 70%. 16. THAT due to my actions the wealmess of the financial and procurement ystems atthe NYS have been identified and can now be rectified 47, THAT due to my actions the attempted plunder of NYS was stopped and previous thefts discovered and suspects brought to book. 78, THAT what is deponed herein is true to the best of my knowledge belief and information, the basis whereof has been disclosed. SWORN by the said ANNE WAIGURU AtNAIROBI This_22 day of FES 2016 \ f Befprgme comaus 03 June 2015 AND WAIGURU, OGW CABINET SECRETARY ILLEGAL TRANSACTIONS MADE TO THE DEVELOPMENT VOTE OF NATIONAI YOUTH SERVICE, 2014/2015 BUDGET ESTIMA’ On 19 May 2015 3.5 billion of the supplementary budget was wired to the NYS system. Between 20 - 21 May 2015 several commitments were made against the development vote budget in the line item: 1 - 1031 -0092 - 03 — 3111504 - 00001001- 0711019999 = 00000001 without my approval. From the IFMIS system the transactions indicate that they were approved by me which is not true. On 22 May 2015 I reported the incident to CID through a phone call, and requested for assistance to investigate and establish those who made fraudulent entries and used my password. They adviced me to put the request in writing and promised to start investigation the following week since it was on a Friday. T also requested the CFO Mr Nixon OBorah to get me the account analysis report. He promised to avail the same on Monday 25 May 2015. T received the report and analyzed. I disputed the following transaction Nos. 4507, 4508, 4511, 4512, 4513, 4514, 4515, 4516, 4520, 4522, 4524, 4525, 4526, 4527, 4528, 4529, 4530, 4531, 4632, 4636 and 4638 which I did not approve. On 26 May 2015 | instructed the In Charge of ICT of NYS to write to the Directorate of Criminal Investigation to request the Cybercrime Unit to assist in establishing the people behind those transactions done fraudulently. A around 2:30 pm I sent my official vehicle to pick the CID officers and at 4:00pm I was called by the Director General, while in his office as well as the PS who called and advised me against the use of CID in the Investigation on the commitment of Ksh828,600,000 done unprocedurely and purported to have been approved by me. The PS, further instructed me to: tell the CID officers who came for the investigations that we shall handle the matter Departmentally and to see him the following morning at T called the Chief Inspector Kipruto of the Cybercrime Unit against my wish and told him that the PS had advised that we hold the investigation since he wanted to handle it Departmentally. On 27 May 2015 I was in the PS's office at 7:00am. He informed me that he had recommended to Public Service Commission to create a position of Senior Deputy Director General and requested for my substantive appointment to the position, He said “go slow on this transactions it will put you in trouble, Those commitments were for materials supplied. Those payments were for companies associated with C5 Rotich who assisted us to get the funding and other wazees. I will introduce to you @ young man by the name Ben, sit with him and agree the best way to finalize these issues”. He also gave me the cellphone of Mr. Ben as 0728-008244. Ben was called to the office and we were told to discuss between us and rest this issue, Mr Ben was too arrogant and used Big Names to intimidate me. He alleged to be the point man for the Cabinet Secretary, Mr Henry Rotich who is a high flyer of His Excellency, the Deputy President, The CID Director is also a friend of his. “You are from the field, we shall teach you how to survive in the city and government offices. Allow those transactions to go on and we shall also take care of you". He said. At that juncture the PS said “You guys are progressing well you can continue since I want to go ‘avel to Arusha.” After the PS left I told Mr, Ben this commitment must be reversed since I have no knowledge of materials supplied and my password was hacked and used. He said he will make it difficult for me to decommit. 1 also told him I will continue pushing for the investigations to establish those who used my password and we parted ways. I then visited Mr. Jerome Ochieng the Director of IFMIS Department and explained to him that my password was hacked and used to approve some transactions which I wanted his assistance to reverse. He advised me to go and Put in writing. I went to NYS, did the letter and delivered to his office. Here He said we should wait to get concurrence of the PS Planning, 9 <4 tic TS and ivid iim that these transactions are not done in the right procedure, it is against public procurement and financial regulations and has to be decommitted. He called Director IFMIS to his office. They spoke in vernacular and asked me to go with him, he would assist. In his office Mr. Jerome told me that I was creating unnecessary confusion and the wording of the letter T wrote was not good. He then called one of his staff by the name Esther and asked her to assist to reverse those commitments I was disputing. She said come with your procurement staff defined in the IFMIS system and I called two of them. When they came she adviced them on how to decommit. The JEMIS system indicated that none of the lines on requisition were eligible for cancellation. “Change request cannot be submitted because the user is not the preparer of the requisition.” The system reported, a I texted the outcome to Mr Jerome since he was out of the office. Mr Jerome replied that he was in a meeting, I called the PS and informed him of the challenges I was faced in decommitting. He said “shauri yenu’. I also texted the Director General on the same and requested him to instruct Regina who was the requestor to decommit. The Director General was equally uncooperative and quarreled me. Madam.CS, I will kindly request for your intervention on this matter to avert financial loss, AG. SENIOR DEPUTY DIRECTOR GENERAL NATIONAL YOUTH SERVICE = © Aa 19 June 2015 \ Anne. Idlarguew ANN WAIGURU, OGW/ fot CABINET SECRETARY Ms MINISTRY OF DEVOLUTION AND PLANNING Further to my letter of 03 June 2015 on Illegal Transactions made to tl Vote of National Youth Service, 2014/2015 Budget Estimates: Following your letter of 05 June 2015, on 09 June 2015 the CID officers visited IFMIS headquarters to investigate and establish the circumstances under which the Youth Empowerment Funds were committed a day after supplementary budget was wired to the system using unauthorized approvals. The IFMIS Director Mr. Jerome Ochieng and two of his staff Kyalo and Susan were very un-cooperative and asked the CID officers to call me. I went to the Treasury with one of my staff Jerard Nyandimo and met the CID Officer at the IFMIS Boardroom. Mr, Kyalo and Susan joined us there. Mr. Kyalo made a phone call, to someone I did not know, and was disputing supplementary estimates wired to National Youth Service (NYS) and further blamed me for making unnecessary complains that I could not prove T explained to him that I use online system, manual documents, LPOs, SOs and Fegisters that I sign after approval in the system and asked him what was his problem? He said “bring all those documents”, I sent my driver to bring the documents then Kyalo said he wanted to talk to me in private. We went to 10! floor the office of Mr Muchiri who was on leave, and while there he said to me “tell these CID officers to cook something, in a way that can convince the CS and not to victimize others and we shall look after them.” T told him am the complainant in this case and he can do that himself, The documents I had sent for were brought and J told him lets go back to the boardroom. He said that he will consult Wis bosses. “He and Jerome left the Treasury Building. I told the CID officers what Kyalo had said, On 14 June 2015 the PS called me at around 6:00pm and told me to meet him at Nakumatt Junction at 7:00pm. I went there and met him with the same Ben again. They told me that Iam a stumbling block and if ! don't cooperate # ey will fix me from by them confirming the status that 1 approved the ads in thal t_ ialantaarc two folds: one through the CID's, transactions and second the suppliers will take me to court. I told them that the truth will always prevail. The PS said come to the office tomorrow the 15 June 2015 1 will write a letter allowing You to decommitt about 200 milion out of the total flaure in dispute and requilariva the rest for them, Then inform the CS that you have decommitted all. I did not make any comment and went to his office the following day and the letter was written and I went with the letter to Mr Jerome’s Office, Mr Jerome asked me “which one do you want to decommit” and I told him 1 will reverse all of them. Again the reverse request was tured down by IFMIS system, Madam CS, after your intervention through a phone call on the night of 17 June 2015 instructing me to go to ‘Treasury in the morning to decommit I was there by 7:00am of 18 June 2015 and the Fequest to decommit was Granted by Jerome and they said I should do tt In person not through others. Mrs, Yemi Fikru one of the IFMIS consultants is the one who assisted transactions 1 had disputed, EER AG. SENIOR DEPUTY DIRECTOR GENERAL ADANG HE, HSC WSs me to decommit all the 10 July 2015 ANR WAIGURU, OGW CABINET SECRETARY MINISTRY OF DEVOLUTION AND PLANNING ILLEGAL TRANSACTIONS MADE TO THE DEVELOPMENT VOTE OF NATIONAL YOUTH SERVICE, 2014/2015 BUDGET ESTIMATES Madam CS, the above matter refers. Following the decommitment of the irregular transactions, there have been various attempts by political actors to intimidate me, and cause me to change story. On 18" June 2015, I was sent a text message by Hon Adan Duale, the text read “Call me back. Are you OK?" I did not call him, he then called me, later the same day, and asked what was wrong with me, because this is'@ political government and T require political support from the region’s leader, from where I hail from. Politically the leaders in government from the region are all in URP. He informed me that “You will be used by the other side of the coalition and dumped". He said “the other side, have even sponsored @ Bill in Parliament to reduce funding for our region, and the Curfew Imposed on our people is instigated by them”. He then concluded by asking me to look for him that weekend for more advice. 1 told him I had no problem with this issue, and would let the investigation establish the facts, and thanked him for his concern, I didn’t look for him at all. On 08 July 2015. 1 received a call from Senator Murkomen who said he was sent to me by the PS on a very urgent, issue and asked me to visit him in his office in Hurlingham, I avoided. On 09 uly 2015 Sonata T avoided to pick his calls. At noon Senator Murkamen visited my Office in the company of-2 person he introduced as Luke Kimutai Samoei, the younger brother of His Excellency, the Deputy President, ‘The Senator asked, “Has the PS explained ta you the reason why I am looking for you?” He further sald the decommitment 1 made was for materials suppl tied and*the merchants were complaining. “The CID Was all also used to close bank account of my friends’ client” he sald, 1 explained to him that the commitment was done by hackers who used my password and the PS wrote a letter allowing decommitment and showed a copy of the letter written by the PS. On the closure of the bank account, I informed him, that that was beyond ‘my purview, and the CID are in a better position to explain to him the same. 1 also Indicated to him, that they are just our neighbours, and he could therefore visit them. He said he will visit the CID Headquarters. Luke Kimutai Samoei requested for business for his company by the name Equity Tech Ltd. He said ¥ should be Biased in giving “good” work, The Senator requested for a much closer working relationship and meeting me outside the office for more discussione in the near future. 1 escorted him out to his car, and found that the former Ag Director of the Youth Directorate, Mr. Stephen Jalenga, was waiting in Senator Murkomen’s car, Madam CS, I do not understand why there is political interference On this issue, DewrllQ ADAN GHARAKHE, HSC AG. SENIOR DEPUTY DIRECTOR GENERAL NATIONAL YOUTH SERVICE *

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