Court files reveal high-level conspiracy in #AngloLeasingBillions cases By @ItsGeorgeKegoro in @DailyNation An affidavit that city lawyer, Kenneth Kiplagat, filed in the High Court in 2010 sheds light on the inner workings of the Attorney General’s office, which has come under severe criticism from many quarters, including the President, over its handling of the Anglo Leasing scandal. Kiplagat was appointed by former Attorney General Amos Wako to act for the government in resisting a claim of $500 million (Sh40 billion) brought by businessman Nasir Ibrahim Ali, against the government in connection with the dealings between Ali’s World Duty Free and Kamlesh Pattni, the architect of the Goldenberg scandal. Ali’s claim, filed at the International Centre for the Settlement of Investment Disputes (ICSID) in London, was that Pattni, with the support of the government, had expropriated his company, World Duty Free, without compensation, and that the loss he suffered amounted to the colossal sums he claimed before ICSID. Ali’s claim was eventually dismissed because of an admission made in his own filing that he had offered a bribe of $2 million to retired President Moi to be allowed to set up shop in Kenya. The tribunal found that in accepting the bribe, Moi “was here acting corruptly, to the detriment of Kenya and in violation of Kenyan law”. The dismissal of the claim put a gloss over controversies that surrounded the defence of the suit, some of which are similar to the issues that have emerged in the latest round of the Anglo Leasing controversy. In particular, the Law Society of Kenya asserts that the Attorney General’s office was deliberately lax in defending the Anglo Leasing suits in Switzerland and London, with a view to giving Anglo Leasing an advantage. In his affidavit, Kiplagat made similar allegations. Kiplagat alleged that he came up against a high-level scheme in the government, calculated at throwing away the case so that Ali would be awarded the massive compensation claimed. Kiplagat claimed that when, very early in the case, he recognised the hostility against him, because he had refused to cooperate with the schemers, he decided “to keep a detailed narrative and written communication of the various acts of sabotage in preparation of the conduct of the defence of the Republic of Kenya as I held the view that an audit or inquiry will be mounted in the event that the case was illegally compromised...” Kiplagat’s affidavit alleges collusion between Kenyan officials, and representatives of World Duty Free, calculated to concede an advantage to the latter. According to him, the Attorney General’s office was never available to give instructions to the lawyers when required, thus compromising the proper defence of the case. LACK OF SUPPORT Throughout the defence of the case, there was a stream of frustrated letters from both Kiplagat, and Freshfields, the UK law firm that Kenya had instructed to act alongside him, over the lack of support from the government in the management of the case. In one such letter to the Attorney General, dated May 2005, Kiplagat laments the lack of preparations for the hearing which was then imminent, saying that “we have left ourselves with little time to review the quality and competence of our [filing]. In short we are throwing away Kenya’s case”. This same allegation has been made in Anglo Leasing, where Solicitor-General Njee Muturi ended up personally acting for Kenya, while ill-prepared to do so. In the same letter, Kiplagat expresses fear that “investigations of the conduct of the Kenya’s defence...will expose us all to liability under the Anti-Corruption and Economic Crimes Act”, adding that he was compelled “for the umpteenth time to place my reservations on the record about the manner in which we are putting at risk billions of taxpayer money by failing to adequately and effectively defend the interests of Kenya”. Kiplagat maintained often strong communication with former Solicitor-General Wanjuki Muchemi, portrayed as the real force in the Attorney General’s office, whom he accused of “not facilitating the proper representation of the Kenya government in a case the Republic is exposed to a judgement in excess of Sh40 billion!” The purpose of the letter, Kiplagat said, was to put on record his concerns which included the fact that because of the failure to pay legal fees due to both him and Freshfields, he had continued undertaking the legal defence of the country, including extensive foreign travel, at personal cost. Kiplagat said while he could wait, Freshfields must be paid immediately, as they did not have his patriotic obligation to defend Kenya, which had made him act for so long without fees. He outlined that he had offered to pay Freshfields himself but they had refused. Clearly recording for posterity, he said that it was “incumbent upon all of us to act in the best interests of Kenya”, and threatened to report the Solicitor-General to his superiors for jeopardising the interests of the country. There were similar complaints by the British lawyers. In one letter, they wrote that it was three weeks before the deadline for filing but they would not file any documents unless their fees were paid. They warned that a failure to meet filing deadlines would automatically lead to a default judgement against Kenya. At several stages in the case, Paul Muite, acting for Ali, freely crossed the line between his client and the government. For instance, Muite was reported to be the source of information that officials in the government, but outside the Attorney General’s office, would grant his client a certain application he proposed to make to the tribunal. In a letter to the Attorney-General, Freshfields advised that Wako should write to them that “you have been instructed to instruct Freshfields not to resist the application. The tribunal will then understand that this was not your doing any more than ours”, the letter concluded. In another letter, Freshfields noted the contents a letter from Muite that “the Respondent … does not object” to his request for an adjournment. Freshfields complained that “Mr Muite has not found it necessary to communicate with us, or indeed the Attorney-General… because he has found another channel of communication... and has chosen to deal with our client directly without informing us”. They termed his conduct “unusual”. Kiplagat also complained over the lack of cooperation from the Kenya Airports Authority (KAA), the government department which provided the arena for the interaction between Pattni and Ali, and therefore the direct evidence that would support Kenya’s case at ICSID. TESTIMONY OF IMPORTANCE Kiplagat lamented that “on numerous occasions Freshfields and myself have had to endure numerous frustrations in obtaining documents from the authority necessary for the defence of Kenya.” For their part, Freshfields complained that “the Kenya Airports Authority has consistently failed to cooperate with us in our attempts to investigate the present status of World Duty Free...” Janet Ong’era, now a senator, and at the time the deputy managing director of the KAA, was presented as the only direct witness on behalf of the government. She was relieved of her job a week after swearing an affidavit for use in Kenya’s defence. According to Kiplagat, her dismissal was engineered by named high-level conspirators, and was calculated to further weaken Kenya’s case. Two weeks after she was dismissed, Ali’s side filed a document at ICSID asserting that “no credibility is to be attached to the Respondent’s star witness, Janet Ong’era. The government fired her shortly after her witness testimony.” In the scheme of things, Ong’era’s testimony was of considerable importance. She provided evidence of the relationship of landlord and tenant, between the KAA and World Duty Free, a relationship characterised by perennial rent defaults that made World Duty Free “a regular item of discussion in KAA’s board meetings” and eventually led to direct intervention by the Treasury. Letters from the tenant always explained that a poor business environment had led to the inability to pay rent, which was now in massive arrears. This evidence would have shown that World Duty Free was not exactly a thriving business and the figure of $500 million claimed as the loss suffered by Ali was contrived. Kiplagat claims that to force him to stop acting for Kenya, the Controller and Auditor-General subjected him to “illegal profiling”, taking the form of queries to the Attorney-General over his qualifications to act for the government. (Kiplagat, was an ‘A’ student at Alliance High School, where he always topped his class, and holds a first class law degree from the University of Nairobi, and doctorate from Yale Law School). Kiplagat asserts that attempts to remove him from the case had to do with his refusal to cooperate with the conspirators. For his part, Wako defended his choice of Kiplagat as based on the constitutional powers vested in his office. Today, claims of profiling in the Attorney-General’s office are still claimed, and ethnicity is claimed to be a major consideration in who gets appointed to positions of leadership in the office. Kiplagat raised the issue of the lawyers who acted for the government before the East African Court of Justice and who were paid Sh72 million, all for a week’s worth of work and contrasted this with his situation where over a number of years, he had to undertake overseas travel in defence of the government, at personal cost. He used this to make the point that the profiling by the Solicitor-General, which allowed the settlement of fees for some and not others, was illegal. In the Anglo Leasing case, Wako’s role has come under some attention, with his successor, Githu Muigai, using allegories to differentiate his role from that of his predecessor. NO REAL AUTHORITY Wako, however, has denied these accusations, asserting that at all times, he acted correctly. While Wako’s assertions are at variance with the findings by the Public Accounts Committee as led by Uhuru Kenyatta, which placed significant responsibility on him for the scandal, his role in the Duty Free case was nothing short of valiant. Wako had appointed Kiplagat to act and then remained his sole ally in government, keeping him on the job against efforts to remove him from the case. Although Wako was the formal head of office, Kiplagat’s documentation shows that the Busia senator had no real authority in his own office. In a letter to Freshfields, Kiplagat wrote: “I sympathise with the Attorney General because he has been put in a corner surrounded by all these conspirators”. Kiplagat concludes that “it is a matter of common knowledge within the legal fraternity that the civil litigation department at the Attorney General’s chambers ‘is a deal-making chamber’ where cases are routinely compromised and fraudulent settlements made to the grave prejudice of the Kenyan taxpayer.” This conclusion resonates with the allegations on Anglo Leasing, and undercuts the sanctimonious assertions by Muigai, that his office acted properly in the Anglo Leasing case. The injury that the country feels, and the personal embarrassment to the President, over having to pay Anglo Leasing more money, call for action that will lead to clear answers to the questions that have been raised. Kiplagat’s example, as a stubborn and courageous insider, who both resisted and documented a massive conspiracy to defraud the country in the Duty Free case, provides compelling evidence that nothing short of an independent inquiry into the Attorney General’s office will be enough.
Posted on: Sat, 24 May 2014 09:28:57 +0000
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