While announcing the decision to arrest the maverick Sonko, DPP Noordin Haji told reporters he had enough evidence to prosecute.
Fifteen other suspects including County Secretary Peter Mbugua and Head of Supply Chain Management Patrick Mwangangi have also landed in trouble on suspicion of collusion in the tender.
Haji also indicted tender committee members Samuel Ndung’u, Edwin Kariuki, Lawrence Mwangi, Preston Mwandiki as well as Wambua Ndaka and Andrew Nyasiego.
The EACC says six firms were made to bid for the garbage deal in a stage-managed process in which the results had been predetermined.
Simon Cherpka of EACC says in an affidavit filed in court that the tender team had agreed on the rates.
This was the reason he argues the six bidders submitted the same rates for the tender floated without the input of the Environment department.
Purlexis Enterprises, Hardi Enterprises, Tusma Trading Company, Acacia Equipment, Bonfide General Contractors, Acacia Equipment, Bonfide General Contractors, and Daasanach Construction Ltd all bid for the garbage collection job.
On June 4, 2018, the committee reported that the six bidders were responsive and qualified to be awarded the contract.
However, City Hall settled on Hardi Enterprises – whose directors they claim were known to Sonko even before he was elected governor.
EACC says the company was given a contract in contravention of procurement law because it did not provide a VAT compliance certificate.
The directors Antony Mwaura and his wife Rose Njeri, who Haji have indicted and ordered arrested, were paid Sh357.4 million in five months.
Trouble started after a search was conducted on the vehicle reported to have been deployed to carry garbage turned out to be saloon cars, motorcycles, and vans with no capacity to carry garbage.
“Evidence gathered from the owners revealed that the vehicles Hardi presented claims for were never used to carry garbage,” Cherpka avers.
Some of the signatures in the time-sheets used by the company to raise the claims were forged, EACC has told the court.
The firm, between October and March 2018, transferred Sh55.8 million to a second firm trading as Toddy Civil Engineering, which coincidentally is owned by the same couple.
A forensic examination of the firm’s accounts showed Sh3 million was transferred to an account held by Sonko at the Equity Bank.
The governor is accused of receiving Sh39 million from a long list of firms and of the total Sh8.6 million he received before 2017.
EACC searched the governor’s account at Kenya Commercial Bank which revealed that the Sh3 million was declared as payment for a lease of land in Kwale.
“Further inquiry into the lease established the land was used for vehicle parking and storage of machinery. Investigations revealed that the land is inaccessible by road, on hilly terrain, and covered by bush,” the affidavit reads.
The EACC has also cited a conflict of interest in the face of the probe revealing there existed a relationship between Hardi directors and the governor prior to 2017 polls.
“Prior to the tender award, Sonko received Sh8.6 million between April and May 2017 allegedly for campaign support, payment of debt, and contract payment,” Cherpka states.
Of the monies, Sh600,000 was from Toddy Civil Engineering, Sh3 million from Mwaura, and Sh5 million from an entity identified as At KIC.
Apart from the Sh2 million that Mwaura claimed to be for contract and debt payment, the rest were not explained.
“It is evident from the said payments that Antony and Sonko have a history of business association which they extended to fraudulent transactions with Nairobi county government,” the affidavit reads further.
EACC further states that the governor received some other Sh27.4 million from Amaco through Arbab Auto (Sh17 million), Yiro Enterprises (Sh8.4 million), and Webtribe (Sh 2 million).
It is in this regard that DPP ordered the arrest of Antony Ombok – the director of Arbab Auto, ROG Security, and High Energy Petroleum Ltd – suppliers of fuel, vehicle spare parts and lubricants.
Also sought by police is Danson Muchemi and Robert Muriithi – directors of Web Tribe Ltd and Zablon Onyango – an agent of the revenue collection firm trading as JamboPay.
Haji also ordered the arrest of Fredrick Odhiambo of Yiro Enterprises, parties that would be charged with economic crimes.
Sonko and his co-accused are faced with charges of conspiracy to commit an offence, willful failure to comply with procurement law, conflict of interest, and abuse of office.
They will also be charged with unlawful acquisition of public property, deceiving principal, money laundering, and acquisition of crime proceeds.
In September, Sonko told EACC detectives that he fired Environment chief officer David Makori and CEC Emmah Mukuhi “having learned the two had influenced the tender award”.
However, the EACC argues that the two were bypassed by the county secretary when he appointed a tender committee to steer the process “in a quite characteristic of a fraudulent scheme”.
EACC says: “It is noted that the county secretary is an appointee of the governor and his conduct smirks of apparent impunity.”
In his statement, Sonko claimed the Mwaura of Toddy Civil Engineering is not the same person who is the proprietor of Hardi Enterprises, claims which contradict Mwaura’s account.
The county chief told EACC that the Sh3 million from the company was for the lease of land further admitting that the businessman was among his campaign financiers.
“I only know that he is a director of Toddy Civil Engineering, a company which has never traded with Nairobi County,” the governor said in his September 3, 2019 statement.
Mwaura, for his part, admitted that he owned both Hardi and Toddy Civil companies and he also does business with Kiambu and Tharaka Nithi county governments.
He told detectives that he learned of the garbage tender through an advert on the county government’s website.
“I don’t remember when or how the bids were submitted to the county. I also cannot confirm whether all required documents were included in the bid,” Mwaura told investigators in August.
“I had no direct link with the county and only facilitated the process of ensuring the county received the requested services,” the trader explained.
On the payments made to Sonko prior to the 2017 election, Mwaura said they were for a Sh7.2 million parcel of land in Kwale he was in the process of buying from the governor.
In his briefing to journalists, Haji warned suspects against acts of intimidation targeting anti-graft officers saying such moves won’t deter them from pursuing cases.
“This was the most difficult case to investigate as our officer suffered intimidation, insults, and threats,” the DPP said.
“The accused persons placed their own interest ahead of the residents of Nairobi. This constitutes a clear and reprehensible abuse of the public trust.”
He held that public officials should be role models for the citizens they serve by adhering to the highest of standards.
“These individuals being charged today chose to break laws, actions for which they must be held accountable in order to preserve the public trust and confidence,” Haji said.