November 2018 Dailynation;Magistrate Francis Andayi has dismissed an application by NHIF CEO Geoffrey Kurgat and Finance Director Wilbert Kurgat that sought to suspend their planned prosecution for hampering investigations into claims that the national health insurer misused contributors’ funds.
Mr Mwangi and Mr Kurgat had argued that the charges were defective and not known in law, and that the court orders they were accused of violating were vague.
But the magistrate ruled on Tuesday afternoon that the charges can be amended, hence there is no reason to suspend plea taking.
He further added that the two NHIF bosses had been served with court orders requiring them to supply books and payment vouchers in respect of dealings between the hospital fund and online payment portal Jambopay.
The two NHIF bosses argued that prosecutors had failed to prove that they wilfully disobeyed court orders.
But Mr Andayi ruled that the law only states that evidence that a court order was violated is enough to sustain prosecution, whether the violation was wilful or not.
“Section 131 does not use the word wilful. The prosecution only needs to show that there was an order which accused failed to obey. I don’t see any fundamental ingredient of the law that was left out. The prosecution has imported both paragraphs (of section 131 of the Penal Code), saying the accused jointly conspired to defeat justice. There is a mix up of the paragraphs. This mix up can be cured by an amendment of the charge sheet,” Mr Andayi said.
The suspects denied charges of conspiracy to defeat justice and two counts of disobedience of a lawful order.
Mr Mwangi and Mr Kurgat were arrested on November 23 on allegations of obstructing ongoing graft investigations at the insurance company.
The two have been accused of refusing to supply the payment vouchers relating to Jambopay payments, in a bid to stop investigations into the loss of hundreds of millions of shillings.
In a statement on Saturday, DPP Noordin Haji said that Mr Mwangi and Mr Kurgat denied officers of the Directorate of Criminal Investigations access to crucial documents.
He identified the documents at payment vouchers and other books that were deemed important to the investigation.