You The Friday, February 26 2016
Former Kenya Power MD James Gichuru and former Energy minister Chris Okemo (right) during mention of an extradition case against them at a Nairobi court. PHOTO | FILE
IN SUMMARY
- The Royal Court of Jersey on Wednesday made a confiscation order to seize the £3.28 million and $540,330.69 (totalling Sh520 million) held in the offshore account of Windward Trading Limited.
- This is the entity former Kenya Power MD Samuel Guchuru used to receive kickbacks in exchange for the award of lucrative tenders to foreign firms during his two-decade tenure at the helm of Kenya Power.
Jersey authorities have seized the entire stash of cash that former Kenya Power managing director Samuel Gichuru and ex-Energy minister Chris Okemo hid in the island, even as they vowed to continue pushing for extradition of the duo to face money laundering, fraud and misconduct charges.
Jersey’s Attorney General Robert MacRae said the decision had the effect of “stripping the company of all its assets,” leaving his office to focus on the ongoing effort to bring Mr Gichuru and Mr Okemo to justice.
“This is a very important case, demonstrating Jersey’s commitment to combatting money-laundering and tackling international corruption,” said Mr MacRae shortly after the court made the asset recovery order.
“The confiscation order provides an indication as to the scale of the criminal conduct that took place.”
The Attorney- General expressed optimism that Kenyan authorities would conclude the ongoing extradition proceedings so that Gichuru and Okemo are handed over “to face money laundering charges in connection with Windward’s activities.”
Mr Gichuru’s systematic bribery scheme involved energy companies from a dozen countries, forcing Jersey authorities to seek mutual legal assistance from 12 governments in pursuit of the stolen wealth.
Mr Gichuru and Mr Okemo face 53 counts linked to “commissions” paid by companies to win Kenya Power tenders and hidden in a Jersey account in foreign currencies: £4.45 million; $3.2 million and kr790,000; (totalling Sh1.01 billion at current exchange rates), according to Jersey court papers.
The duo kept withdrawing handsome amounts from the Jersey account until 2003 when administrators of the slush fund refused to wire payments to Gichuru fearing punitive consequences from the Kibaki regime, which had hired Kroll Associates to track and repatriate funds stolen and stashed abroad under the Kanu regime.
Moi-era carpetbaggers – mostly public officers - looted more than £1 billion (Sh146 billion) from taxpayers’ and stashed the cash in offshore bank accounts and prime real estate overseas, according to a forensic study by Kroll Associates.
Kenya Power awarded big-ticket contracts to multinational energy companies, who discreetly paid bribes to Mr Gichuru through Windward, said Howard Sharp, who prosecuted the case and previously served as Jersey’s solicitor general until July 2015.
“The case is historic. It is the first time there has been a prosecution in respect to the corruption that took place during the Moi era,” said Mr Sharp, a Queen’s Counsel, who began working on the case in 2007.
The renewed efforts by Jersey to seize the loot in Mr Gichuru’s hidden account once again puts to shame Kenyan anti-graft agency and public prosecutor who are yet to institute any charges against the ex-Kenya Power boss and his co-accused for defrauding the Kenyan public.
Mr Gichuru’s tenure at the helm of Kenya Power was replete with load shedding and increased uptake of expensive thermal and temporary power - which cost the Kenyan economy billions of shillings annually.
The asset seizure in Jersey comes as Mr Gichuru and Mr Okemo continue the epic court battle in Kenya against their impeding extradition to the Channel island to face criminal charges.
The Court of Appeal last month temporarily stopped the extradition of Gichuru and Okemo after the two contested a High Court decision that allowed their transfer to the European island to face criminal charges.
Windward pleaded guilty to four counts of money laundering, admitting that it was used as a vehicle to dry-clean proceeds of corruption between July 1999 and October 2001.
The Proceeds of Crime (Jersey) Law (1999) provide for confiscation and forfeiture of assets gained from criminal activities such as money laundering, drug trafficking and inducements such as bribery.
Mr Gichuru in August 1986 set up Windward Trading in Jersey as the entity that would receive bribes disguised as ‘commissions’ or ‘consultancy fees’ from firms that won Kenya Power tenders.
Walbrook Trustees were appointed as the administrator of the offshore company, a legal arrangement that shielded Mr Gichuru from being seen as the face behind the entity.
Suppliers inflated tender prices to factor in Mr Gichuru’s kickbacks, and would wire cash to the offshore account once they received payments from Kenya Power.
Finnish energy firm Wärtsilä, Knight Piésold, British engineering company Mott Macdonald, and Capitan (Europe) Ltd were some of the global firms that paid kickbacks to Gichuru’s entity, which had opened accounts with Jersey’s HSBC Bank Plc and Royal Bank of Scotland International.
Wärtsilä paid Windward £3 million and £500,000 between January 1998 and October 2001, according to court papers.
It was Mr Gichuru’s messy divorce case that lifted the lid on his hitherto secretive offshore accounts, prompting Jersey authorities to probe the matter.
Jersey, a British Crown dependency, is the biggest of the Channel Islands and has a population of about 100,800 sitting on a land mass measuring eight kilometres long and 14.5 km wide.
Kværner, an Oslo-based engineering firm, paid Mr Gichuru a commission of £380,000 through Windward Trading, according to court papers.
Gichuru awarded Knight Piesold the £43 million Ewaso Nyiro hydro-electric power contract and much of it was paid upfront to the contractor to enable Windward get its “consultancy fee.”
Court papers say that Okemo’s receipts from Windward were between August 2000 and August 2001 during a period that Gichuru’s company was receiving significant payments from Wärtsilä.
Jersey’s asset forfeiture makes it the third time this year that Kenyan authorities are being shamed for inaction in pursuing graft, as the Ethics and Anti-Corruption Commission (EACC) and the Director of Public Prosecutions drag their feet in bringing local suspects named in international crime syndicates to justice.
London’s Southwark Crown Court on January 8, 2016 seized the assets of Smith & Ouzman Ltd and ordered the British printer to pay a total of £2.39 million (Sh351 million) in fines and penalties for paying out bribes codenamed ‘chicken’ to Kenyan electoral and examination officials.
Four days later, Moi-era big time looter and pseudo-businessman Ketan Somaia - who is already serving an eight-year sentence at the maximum security Belmarsh Prison for fraud - was fined a total of Sh5.6 billion by a British court or serve a 16-year jail term for another fraud.
Somaia is the billionaire who presided over the collapse of Delphis Bank and is best known for his involvement in the Goldenberg scandal, which wrecked Kenya’s economy.
The Serious Fraud Office has indicated that it is willing to return to Kenyan taxpayers the equivalent of £349,057.39 (Sh52 million) paid in kickbacks by Smith & Ouzman Ltd to win lucrative tenders at IIEC and Knec.
None of the locals who ate the ‘chicken’ have been charged in court to date, a year after London convicted and jailed Smith & Ouzman directors for bribing Kenyan public officials.
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