By The Weekly Vision Reporter
The High Court has quashed a ruling by Milimani Anti-Corruption Chief Magistrate Thomas Nzyoki, which had found former Samburu Governor Moses Kasaine Lenolkulal and two others guilty in a case involving the supply of fuel worth KSh 84.7 million to the county government by a petrol station owned by the former governor.
Consequently, the court lifted the eight-year jail term imposed on Lenolkulal and his landlord, ordering a refund of any fines they had paid. The High Court also set aside an order made under Section 64 of the Anti-Corruption and Economic Crimes Act (ACECA), which had disqualified them from holding public office for ten years.
In a ruling delivered on 7th November, Justice B.M. Musyoki faulted the trial court for rejecting the defence by Lenolkulal and Hesbon Jack Wachira Ndathi (his landlord), noting that the two had a tenant–landlord relationship rather than one of principal and agent.
“The trial court was justified in inferring a relationship between the 1st and 2nd appellants as agent and principal, but it is trite law that no amount of suspicion can lead to a conviction,” ruled Justice Musyoki.
“By rejecting the defence, the trial court implied that the appellants had to prove their innocence, yet an accused person bears no such duty.”
He further observed that an accused person needs only to raise a reasonable doubt to merit acquittal, and that the burden of proof remains with the prosecution throughout.
Justice Musyoki ruled that the prosecution failed to prove that Lenolkulal owned or controlled Oryx Service Station, or that he benefited directly from its dealings with the Samburu County Government.
Lenolkulal had earlier been convicted of conflict of interest, contrary to Section 42(3) as read with Section 48(1) of ACECA, for allegedly using his station to supply fuel to the county government between 2013 and 2019. He had been fined KSh 1 million, or four years’ imprisonment in default.
He and Ndathi were also convicted of unlawful acquisition of public property, with the court finding that they had unlawfully received KSh 84,695,996.55. They were fined KSh 1 million each and an additional mandatory fine of KSh 83,460,995 under Section 48(1)(b) of ACECA.
Co-accused Bernard Ltarasi Lesurmat, Chief Officer for Lands, Housing and Urban Development, was convicted of abuse of office and fined KSh 700,000, or four years’ imprisonment in default.
However, Justice Musyoki found that Lesurmat had joined the county government after Oryx had already become a supplier, and that procurement processes were conducted regularly. He ruled that the prosecution failed to show any improper relationship between the accused persons. “There was no evidence that the government lost any money or that procurement rules were flouted. The investigating officer even stated that the issue was conflict of interest, not procurement irregularities,” the judge noted.
The judge held that payments made to Oryx were for fuel actually delivered, adding that no audit queries or irregularities were raised regarding the transactions.
He further criticised the trial court for assuming that Lenolkulal and Ndathi equally benefited from the KSh 84 million, noting that such assumptions lacked an evidential basis. “The benefit could only be the profits derived from the business, not the entire payment for goods supplied,” he said.
In conclusion, Justice Musyoki declared that the appeal was meritorious, set aside all convictions and sentences, and ordered that Lenolkulal, Ndathi, and Lesurmat be acquitted and refunded any fines paid. He also lifted the earlier order barring them from holding public office for ten years.
