Justice Joseph Mbalu Mutava made the previously unpublicised judgment dated March 20 letting off the hook Kamlesh Pattni and his associated companies over the Sh5.8 billion Goldenberg scandal. He however rejected Mr Pattni’s contention that the media be barred from reporting the case.
“It will be foolhardy not to observe that the verdict of this court in the present application is bound to elicit din, clamour and hostility in view of the predispositions by the media and public opinion with regard to the notoriety of the applicant (Pattni),” said Justice Mutava, declaring that the work of a Judge is not for the faint-hearted.
“I am therefore comfortable and well prepared for any reaction,” he added.
He barred the State from continuing with the criminal prosecution against Mr Pattni on the grounds that his constitutional rights had been violated since the case had dragged on for long.
The judge also observed that the Bosire Commission of Inquiry report on thescandal on which the existing criminal case was anchored is flawed. On top most witnesses are already dead or their memories have faded.
Mr Pattni moved to the High Court in August last year seeking to quash the criminal proceedings at the magistrate court and stop the state from further criminal prosecution on the scandal estimated to have cost Kenya tens of billions.
However, the Judge rejected the Pattni’s prayer that the media be barred from reporting on the case saying the court can only intervene to set parameters of reporting to protect someone’s right.
In November last year, Justice Mutava’s conduct came to question over handling of Pattni after a after a petition against him was filed by Havi and Company Advocates on behalf of the International Centre for Policy and Conflict. It sought to have the Judge removed from office over the same case.
The firm had charged the whole matter had not been handled through the correct procedure and some of the orders made were outside of the law.
The petitioner had faulted the Judge’s handling of the matter and accused him of being part of “an orchestrated cover up to aid and abet Pattni’s criminal conduct”.
The Judge was later transferred to Kericho from where he wrote the controversial judgment on Mr Pattni’ application for the case to be scrapped.
In setting Mr Pattni free, the Judge heavily borrowed from the jurisdictions of the late George Saitoti and former Central Bank governor Kotut, where the court recommended that the two should not be prosecuted based on the Bosire report which is heavily flawed.
He said the application by Pattni was related to the Saitoti and Kotut case and the transactions were similar.
The judge also let off the hook Mr Kipng’eno Arap Bii, a former general manager of Kenya Commercial Bank and a co-accused of Mr Pattni. The third accused Mr Wilfred Koinange is deceased.
Unless the director of the Public Prosecutions (DPP) appeals the decision, the judgment brings to rest a 20-year-old scandal that has seen Pattni and his co-accused in and out of the court.
The DPP Keriako Tobiko has already applied to court asking to be supplied with the certified copies of the proceedings to appeal the court’s decision.
The scandal dates back 1990 when Pattni incorporated Goldenberg International Limited, which engaged in exportation of gold and jewelry. The government through the Treasury paid export compensation for the alleged exports. The company was paid Sh5.8 billion as compensation, which was faulted as illegal, irregular and in some instances non-existent.
Mr Pattni was charged in court with the offence in the 90’s, but when former President Mwai Kibaki government took office in 2003, all the pending nine charges were terminated and the Bosire Commission formed to investigate the scandal.
The commission in its report in 2006 recommended further investigation and prosecution of the suspects including Mr Pattni.
Meanwhile, Mr Pattni entered an agreement with Central Bank of Kenya, which paid him the cash, and surrendered the Grand Regency (now Laico) hotel wishing to be let off the hook.
Following the recommendation of the Bosire report, Pattni was charged at the magistrate court in 2006 with four criminal charges. Mr Pattni started negotiations with the DPP to have the criminal proceedings dropped which collapsed last early.
The charges against Pattni were brought afresh in April last year, where he was charged with eleven charges which included seven new ones.
Following the development, he moved to High Court seeking to stop further prosecution saying that the state had infringed on his rights.
The Judge said that in the new charge sheet, CBK is listed as complainant and yet it has reached settlement with Mr Pattni in which Pattni surrendered Grand Regency. Further DPP had submitted to high court CBK was just a witness and not a complaint, which he found contradictory.
He said the laying of fresh charges against Mr Pattni and others, more than fourteen years after the events occurred constituted an inordinate delay and was in no manner a reasonable time.
“This court has found that the applicant and the interested party’s fundamental rights and freedoms guaranteed by the constitution have been violated by the state in several respects and on this ground, has issued prohibitory orders against the state, effectively bringing to an end any current or future criminal proceedings against the Applicant and the interested party (Mr Bii) arising from or in any way connected to the Goldenberg affair or Bosire report,” ruled the Judge.
Although Judgment may have left a room for the DPP to carry out fresh investigations, this may be a tall order considering that as noted by the Judge most witnesses have either died or memories faded.
Amongst the dead co-accused are former spy chief James Kanyotu, former Treasury PS Wilfred Koinange CBK deputy governor Eliphas Riungu.
- Business Daily
