Jillo Kadida
30 October 2008
Nairobi — The Kenya Anti-Corruption Commission has no right to investigate a Sh3 billion contract for construction of a military command centre in Karen code-named Nexus, a court has ruled.
High Court judge Joseph Nyamu further restrained the graft watchdog from investigating the contract saying it has breached public policy.
And if any party has complaints about the contract, then it should be addressed by the arbitral tribunal at The Hague, he said.
The judge noted that the contract in question had confidential provisions, which relate to non-disclosure and the anti-corruption commission has no right to induce the breach of confidentiality provisions by purporting to investigate.
"It is also not lost to the court that the confidentiality provisions in the contract were principally aimed at safeguarding the national security," held the judge.
Mr Justice Nyamu also said the national security concerns override any other public interest concerns including investigations, no matter how well intentioned.
The judge, in his decision, noted that the Government's chief legal advisor, Mr Amos Wako, gave representations and opinions on the contract, and therefore cannot run away from it now.
"In a situation where the AG cannot walk the high moral ground due to the clear opinion and representations he has made to the other contracting party when contract was made, the court must restrain him from the intended action (investigations) to uphold the needs of public morality," the judge said.
The judgement arose out of an application filed by a firm Nedermar Technology BV against the graft watchdog and the AG challenging investigations into the deal.
Agreement
The company signed an agreement dated November 19, 2002, for 'Project Nexus'. The project was completed and handed over to the State in September 2005, but full payment for the work done has not been made.
The payment was stopped after investigations into the Anglo Leasing scandal started.
And following the default on the part of the Government, the company filed a complaint at The Hague on March 1, 2006.
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