By Mandere Onyinkwa
The High Court has ordered former Homa Bay County Assembly Clerk Bob Kephas Otieno and two others to repay Sh12.57 million in public funds.
The money was found to have been fraudulently paid into a joint bank account.
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Justice Benjamin Musyoki, in a judgment delivered recently, held Otieno, Lilian Achieng Aloo and David Obonyo jointly and severally liable for Sh12,571,166.50, together with interest at court rates from the date the suit was filed until full payment.
The court also awarded costs to the Ethics and Anti-Corruption Commission (EACC), which filed the civil recovery suit following investigations into the transactions between December 2015 and December 2017.
The commission said the money was transferred from the Assembly’s salary suspense account to an account jointly held by Aloo and Obonyo, allegedly under the guise of salary payments, although neither was employed by the Assembly or the county government.
Aloo was a teacher employed by the Teachers Service Commission, while Obonyo worked as a Business Growth and Development Manager at Equity Bank’s Homa Bay branch during the period under investigation.
In his ruling, Justice Musyoki found that the payments were unlawful, noting that the defendants had failed to provide adequate evidence that the money was paid for goods supplied or services rendered.
“It cannot be normal when public coffers are being emptied and depleted to pockets of individuals when the public did not receive commensurate services or benefits for the same,” the judge said.
Procurement records
The defendants maintained that the payments were for services provided by Damila Enterprises, a business owned by Aloo and Obonyo, including catering for the funerals of three Assembly members and various construction and renovation projects.
Otieno told the court that the payments were authorised for services rendered to the Assembly, denying that the transactions involved fraudulent salary payments.
He also argued that some of the supporting documents had been taken during an EACC raid on his office, while others were lost in a fire.
However, the court found that the documents presented did not adequately demonstrate that the contracted works had been completed or that the payments were justified.
The judge noted that the defendants attributed about Sh6 million to funeral catering services, while the documents presented in court supported a total of Sh7,106,890 for the three services. This left Sh5,464,276.50 unexplained.
Justice Musyoki also faulted the lack of procurement records, including evaluation committee minutes, necessary approvals, an approved budget and a procurement plan.
“Even where there is direct procurement, there should be accompanying or supporting documentation,” the judge said.
The court further questioned why payments for services allegedly provided by Damila Enterprises were directed to the couple’s personal joint account rather than the business account.
Former clerk held responsible
The judge ruled that Otieno, as the Assembly’s accounting officer, had a duty to ensure public funds were properly managed and paid only to deserving contractors for work performed.
He also found Aloo and Obonyo liable for receiving public money for work not demonstrated to have been done or services not proved to have been rendered.
The court rejected the defence that the payments were legitimate business transactions, finding that the evidence did not sufficiently account for the money.
The three defendants were ordered to compensate the government for the full amount, with the judgment reinforcing the personal liability of public officers and other parties involved in the unlawful use of public funds.
