3.At the material time the Appellant was County Election Committee, the equivalent of a cabinet secretary, at the County Government of Wajir.
4.The charge for which the Respondent was convicted read:-
5.The prosecution called a total of 29 witnesses who can be placed in four groups: PW1 to PW 15, PW27 and PW 29 were employees of the County Government of Wajir; PW16, PW 20, PW21 and PW 28 Investigators with the Ethics & Anti-Corruption Commission; PW17, PW 18, PW19, PW 22 to PW 24 were employees of the KCB Bank Limited; and PW 25 and PW 26 were expert witnesses to wit a Forensic Document Examiner and a Data Analyst and investigator with Safaricom Limited respectively.
6.With respect to the charge of willful failure to comply with the laws relating to the management of public property, the prosecution witnesses testified as follows: AHMED GUHAD OMAR, (PWI) Chief Officer Medical Services Wajir County Government testified that he was the acting Chief Officer Finance and Audit from 28th June 2018 to 10th October 2018; that Wajir County Government had an Imprest Account at the KCB Bank, Wajir Branch which had two signatories, Jeff Mworia (Head of Treasury) and himself being the mandatory signatory; that during his tenure the two of them would sign cheques and the money would be withdrawn from the bank by the cashiers; that on 4th October 2018 he received a letter appointing Mohammed Salat as the Chief Officer Finance and was subsequently informed by the Manager KCB Wajir that he was no longer a signatory to the Imprest Account. He identified the cheques signed by Jeff Mworia which were used to withdraw the impugned Ksh. 26, 100,000.
7.MOHAMMED SALAT OSMAN, (PW2), the Chief Finance Officer Wajir County and successor to PW1, testified that he presented the letter authored by the Appellant which introduced him as a signatory to the Imprest Account and completed the account amendment form whereupon the bank manager confirmed through a letter that all cheques payable on the imprest account were to be signed by him (PW2) and were to be accompanied by the payment vouchers. He stated that the money once withdrawn would then be taken to the cash office where payments would be made to the imprest holders and then he would record the same in the imprest account register. He stated that the payment vouchers for the Kshs. 26,100,000 could not be found; that the County Imprest account was used to pay allowances, operational expenses, or items that were not procurable and that in the absence of the Chief Officer Finance, it was in order for the County Executive Committee Member Finance to give instructions as to who would become a signatory.
8.Abdi Rahman Aden Adow (PW3), an accountant working with the Wajir County Government, whose role was writing cheques, collecting cheques and paying cash, testified that on 9th October 2018, Jeff Mworia, the Head of Treasury collected a cheque book No. 8 running from Nos. 007301 to 007400, cheque book No. 9 running from Nos. 007401 to 007400 to 00748 which had unused leaflets running from No. 007482 to No. 007500, from his office. PW3 stated that he made an entry of the books collected by Jeff Mworia in a diary and Mworia signed and dated the entry. PW2 stated that he then wrote a letter to the Chief Officer Finance (Ahmed Guhad (PW1) to inform him about the books collected from the cash office, whreupon the Chief Officer Finance wrote a letter dated 9th October 2018 to the Bank Manager to inform him of the unauthorized collection of cheque books from the cash office by the Head of Treasury Jeff Mworia. PW3 testified that the disputed cheques did not appear in the cheque register. He added that he opened a new cash register on the strength of the verbal instructions of the Chief Officer Finance (PW2) and that the Imprest Account had two signatories (the Chief officer Finance and the Head of Treasury). The Account also had three agents. He stated that the funds withdrawn from the account (Kshs.26,100,000) were not taken to the cash office.
9.Eric Njue Ngagi (PW5), an Accounts clerk testified that he was the custodian of the payment vouchers which were taken to his office after payment. He stated that although he had received the payment vouchers for the 2017 / 2018 financial year, he was yet to receive the vouchers for the 2018/2019 financial year. That the same would be received at the end of the financial year and that payment vouchers already paid would be kept in the Archives while those that were yet to be paid would be kept in the Treasury.
10.ABDI ABDULLLAHI HASSAN, (PW6), the Deputy Director Supply Chain Management, testified that he informed the Ethics and Anti-Corruption Commission officers; that his role was purely to give professional opinion on the procurement process and he did not know how payments were made.
11.Osman Mohammed Kassim, (PW7), the Head of Human Resource produced the letters of appointment for the 1st to 3rd accused persons and in cross examination stated that the Wajir County Government usually employed casual employees and that the 2nd accused was the mouthpiece of the Wajir County Government.
12.Hussein Sugow Gedi, (PW8) County Executive Committee Education, Gender, Sports, Culture and Social Services, testified that cabinet meetings would be held on a need basis and that communication of the same would be done by the County Secretary or through the WhatsApp forum; that the meetings required a quorum of five and would be chaired by the Governor while the County Secretary would take down the minutes. He stated that he could not remember any meeting being held in the month of October or that change of account signatories would be discussed in the meetings. He contended that his role was to attend meetings and not to take or keep minutes. In cross examination, he stated that he could not remember if a meeting was held on that day which was a Saturday and that he did not know if there was a resolution arising from that meeting. He further stated that the County Secretary who worked on the instructions of the Governor was the official liaison between the public and the County Government.
13.Pw9 Ahmed Sheriff BulE, (PW9) the CEC in charge of Public Service, Special Programmes Centralized Units and Town Administration, testified that he was not aware if a meeting was held on 6th October 2018 since he was in hospital on that day. In cross examination he stated that he did not participate in meetings when he was away. He also stated that the County Governments usually employed casual workers from time to time.
14.NAIMA IBRAHIM SOMO, (PW10), the CEC in charge of Land, Physical Planning, Housing and Public Works in the Wajir County Government testified that the Wajir County Government had a total of ten CECs. She stated that the meetings whose quorum was five CECs were convened by the Governor through letters posted in their WhatsApp forum whose Administrator was the County Secretary. In cross examination, she stated that the decision to call for a meeting fell on the Governor. Further, that the County Secretary had never chaired any meeting and acted on the instructions of the Governor on any administrative issues and that cabinet meetings would be held on a need basis.
15.Ismael Issak- (PW12) the CEC Trade & ICT stated that he did not attend a meeting that was held to discuss account signatories nor did the Executive Committee approve of Jeff Mworia to be the sole signatory of the County Imprest account. In cross examination, he stated that the governor would chair the meetings while the County Secretary would take down the minutes. He also stated that the 2nd accused was the custodian of the minutes and that he acted on the instructions of the Governor.
16.Yusuf Abdi Gedi (PW 13) the CEC Agriculture & Livestock Wajir County Government CEC Agriculture & Livestock Wajir County Government testified that the Cabinet did not authorize Jeff Moria to be the sole signatory to the imprest account and that the County Executive Committee did not hold any meeting in the month of October as the last meeting was held in September and thereafter in December.
17.PW 16 ALEX KINYANJUA, a Digital Forensic Analyst working with Ethics and Anti-Corruption Commission testified that he undertook forensic analysis of two computers and mobile data extractions from the mobile phones and prepared a report on the findings; that on the spectra laptop recovered from Mohammed Yunis he found a word document with the title “change of signatories of the imprest account” that had been created on 10th October 2018. That the same was a letter dated 5th October 2018 ref no WCG/FEP/ BKS/5/2018 addressed to the manager KCB Bank, the subject being change of signatories on imprest account number 1141515873. He stated that the letter was prepared by Daudi Omar CEC Finance (the Appellant). In cross examination, he stated that he did not take part in the recovery of the laptop and Samsung phone and that he got the name Mohammed Yunis from the investigator.
18.Fatuma Guyo Dima (PW17), the Manager Service Quality and Compliance at the Kenya Commercial Bank Wajir branch testified on 9th October 2018 that she received cheques which she took to the Branch Manager for further confirmation due to the amounts in the cheques and the fact that only one signatory had signed. That the branch manager approved the cheques by indicating Daud/Ibrahim thereon and appending his signatures. She stated that the cheques were then processed and she authorized the transaction in the system and recorded the large debit in the register; That the stamp impression on the cheques and the tellers signature was a confirmation that the cheques had been processed in the system while Jeff Mworia’s signature and ID number signified the collection of the cash. She confirmed that she released the funds to Mr. Hassan, an employee of the County appointed and brought in person by Jeff to carry the money in two batches. She also confirmed that the branch received a letter from the CEC Finance authorizing the Head of Treasury to be the sole signatory to the imprest account and also that subsequently the branch received another letter reverting back to two signatories.
19.Hassan Dulu (PW 18), a cashier at the with KCB Bank Wajir Branch, testified that on 9th October 2018 he was instructed by the line manager to process cheques and that the same were confirmed. He stated that he paid the cheques and after he debited the same the line manager collected the cheques and recorded them in the large debit register. That the signature on the face and back of the cheques belonged to Jeff Mworia.
20.Adam Siba (PW 19), a cashier at the same bank testified that on the 11th October 2018, he paid Abdiraham Aden a cheque of Ksh. 175, 600 drawn on the 6th October 2018 on the imprest account since the cheque was within his limit; that the cheque was properly drawn.
21.Titus Kariuki Njuki (PW 20), an investigator with the EACC testified that he drafted and delivered a letter, dated 29th October 2018 addressed to the County Secretary requesting for bank statements, cheque books and payment vouchers and was informed by the County Secretary that auditors who were in the County were using some of the documents and had requested for the documents. He stated that the County Secretary who was in the company of the Chief Officer Finance handed him a cheque book for the County Imprest Account, payment vouchers, imprest warrants and certified bank statements and the same were recorded in an inventory.
22.Ali Mandera Ayub (PW 21), also an investigator with the EACC testified that on 8th November 2018 he recorded the statements from officials working at the KCB Wajir Branch which he presented in the Chief Magistrate Anti-Corruption Misc. application No. 18/18, Misc. Application No. 23, Misc. Application No. 21, Misc. Application No. 24, Misc. Application No. 26, Misc. Application No. 28, Misc. Application No. 20 all applications for warrants to investigate the accused persons bank accounts.
23.Soccuda Legas Ahmed (PW 22), a teller with the KCB Wajir branch stated that she processed the impugned cheques after they were confirmed by the branch manager and that one of the cheques had been signed by both Jeff Mworia and Mohammed Salat.
24.Amina Abdi (PW 23), a Customer Consultant with the KCB Wajir branch testified that on 23rd March 2018, the bank received a letter of even date, whose instructions were to add Michael Muli and Jeff Mworia as signatories and to remove Abdul Wahid Sheik Sugor Abdile. That after the branch manager confirmed the instructions, she gave Michael and Jeff Mworia amendment forms to complete after which she too signed the forms. That on 5th October 2018, the branch received a letter from the County instructing the Branch Manager to remove Ahmed Guhad from the imprest account as a signatory and in his place to add Mohammed Salat. She stated that Ahmed Mohammed Salat was then called upon to sign the amendment form.
25.Lapakiyo Henry (PW 24), the Assistant Service Quality and Compliance officer at KCB Bank testified that he provided documents related to the Wajir County Imprest Account to the EACC officials. That as regards overdrafts, the Branch Manager could only receive instructions from the client but had no authority to approve the request as the overdrafts were forwarded to Mohammed Musa for authorization.
26.Daniel Hamisi (PW 26), a Data Analyst and Investigator with Safaricom testified that after investigations, they found that account number 072492090 was registered in the name of Siyad Ibrahim Ahmed; that No. 0722380695 in the name of Daud Omar, No. 0720067709 in the name of Jeff Mworia Githinji and No. 0726141422 in the name of Ahmed Sahal Omar. He stated that he did report to that effect.
27.Abdullahi Hassan Maalim (PW 27) the acting County Secretary and Head of Public Service Wajir in County Government, testified that he signed, certified and issued to the EACC officers the Minutes for the meetings held on the 10th September 2018 and 6th December 2018. In cross examination he stated that the CEC Finance gives directions on matters finance and the law gave him the mandate to deal with the bank. He stated that the Cabinet did not hold any meeting to discuss the loss of Kshs. 26, 100,000.He also stated that during his tenure there were no deliberations on the Ksh. 26, 100, 000 million or on the signatories to the imprest Account.
28.STEPHEN WANYAMA (PW 28), an investigating officer testified that on the 7th November 2018 he was briefed about the unprocedural withdrawal of Kshs. 26,100,100 from the Wajir County Imprest Account at the KCB Bank Wajir Branch, by Jeff Mworia and Abdalla Omar who then delivered the money to the Governor in Nairobi. That through a letter dated 29th October, 2018 the Ethics and Anti-Corruption Commission requested for several documents and that the County delivered to the EACC a partially used cheque book containing cheque Nos. 007493 to 007500; that the EACC obtained search warrants to investigate the bank Imprest Account but as the County did not avail the documents supporting the withdrawal the EACC served the County Secretary with a search warrant. He testified that the officers searched the Treasury, the CEC Finance office, the County Secretary’s office, the Archives, the ICT office and the cash office; that two laptops were recovered in the office of Director Budget; that a red delivery book, was also recovered from the cash office, transfer letter and another letter from the CEC Finance office. Further that a cash imprest account, a cash book of the imprest account, the Imprest Account cheque register and diary of the County Government Wajir were recovered from the cash office. He stated that they could not trace the money and therefore obtained warrants to search the houses of Mohammed Abdi, Jeff Mworia and Siyad Ibrahim; that a number of items were recovered from the Governor's house which they later analyzed and returned to him as they were not of any evidential value. He testified that they also received and analyzed the movement register to have a clear picture of how letters were moving from the County Secretary's office to the other offices outside the County and to establish how the letter dated 6th October 2018 moved from the office of the County Secretary to the office of the CEC Finance. He stated that the letter was not recorded in the delivery book. He further stated that he did not find any documents to support the withdrawal of Ksh. 26, 100,000 million or documents to support the expenditure of that money.
29.Ambassador Mohammed Mohamud (PW29) testified that he was the Governor of the County Government of Wajir. He stated that the County Executive Committee (cabinet) meetings would be convened by the County Secretary in consultation with the chair and the secretary would then write to the CEC members through their common WhatsApp forum. He stated that the County Secretary was an ex officio member of the Cabinet and was the custodian of the minutes. He also stated that he (the Governor) chaired the meetings held on 10th September 2018 and 6th December 2018 and signed minutes as a reflection of what transpired. He also confirmed the appointments of the Appellant and the other two accused persons. He further stated that he received a letter informing him that Mohammed Salat had taken over from Guhad as the CEC Finance and stated that he quickly communicated to him on email. He contended that although he did not know who authorized the overdraft, the CEC Finance was tasked to manage the financial matters of the County. Further, that he did not know who withdrew the Ksh. 26,100,000 or who issued instructions for its withdrawal or who received the money. He stated that after he learnt of the allegations he contacted the CEC Finance who informed him that the money was used to pay casual employees. He also testified that the internal audit had not notified him of any misappropriation of funds. He testified that the County had engaged casual employees who demanded payment. That his election was hotly contested but that he was confirmed by the Supreme Court; that that the loyalty of staff was divided as most of them were appointed by his predecessor; that the County would be audited yearly and that he was yet to be presented with a report indicating the loss of Ksh. 26,100,000. Lastly, he testified that his Cabinet had not discussed the loss of the money nor had anyone been summoned by the County Assembly to explain the loss and that as Governor there were times he worked on Saturday and that documents could be signed on Saturdays.
30.In his defence the Appellant stated that as the CEC Finance and Economic Planning his duties were inter alia to prepare the budget for approval by the County Assembly, to manage County funds, authorize signatories and source for funds. He stated that the payment, accounting and revenue system was manual and that updating of the cash books was done by the cashiers and he was not involved. He stated that most of the people working in the County wee from the previous Governor’s clan.
31.In regard to the issue of signatories it was his evidence that upon the transfer of the Chief Officer Finance to the Trade & Industrialization he was replaced by Mohammed Salat; that when he received the letter concerning the transfer he wrote a letter to the Branch Manager, KCB Wajir and instructed him to remove Ahmed Guhad as signatory to the imprest account and to replace him with Mohammed Salat who was taking over the office. He testified that it was the duty of the Bank Manager to change the signatories. He also stated that he spoke to Mohamed Salat who confirmed to him that he had indeed been appointed as the new Chief Officer Finance and had been asked to report immediately. He testified that he made a decision for Jeff Mworia, to operate the account because Mohammed Salat had a sick relative and the casuals needed to be paid as they were demonstrating and because Jeff Mworia was an existing signatory of the account. He contended that he made the decision in consultation with the Governor, the Deputy Governor and the Director Legal. He conceded that he wrote the letters to the KCB Manager requesting Jeff Mworia to operate the imprest account until further notice but denied that he authorize Jeff Mworia (3rd accused at the trial) to draw monies in a manner contrary to the law.
32.In cross examination he stated that he was alive to the Public Finance Management Regulations that required him to designate two signatories for the accounts. He conceded that his letter authorizing Jeff Mworia to be the sole signatory did not comply with Regulation 85(2) but reiterated that his decision had the blessing of the Governor, the Deputy Governor and the Director Legal. He also contended that when Mohammed Salat reported on duty he (the Appellant) revoked the letter by writing another letter to the Bank. He further stated that the money withdrawn by Jeff Mworia was used to pay casuals.
33.Learned Counsel for the parties consented to canvassing the Appeal by way of written submissions.