Three Italian firms at the centre of the Sh63 billion Kimwarer and Arror dams scandal have claimed that power struggles between President Uhuru Kenyatta and his Deputy William Ruto led to the illegal cancellation of the projects.
In filings before the International Court of Arbitration, Cooperativa Muratori & Cementisti - CMC Di Ravenna Societa Cooperativa (Italy), Itinera S.P.A and CMC Di Ravanna- Itinera JV S.C.P.A alleged that the tender for the construction of the two dams was cancelled to derail Dr Ruto's quest for the presidency in the 2022 general elections.
The firms quoted Press reports, saying Mr Ruto has been a vocal supporter of the projects because it would benefit people in his backyard.
"Claimants find confirmation that they fell victim of a political struggle for power between the president, Mr Uhuru Kenyatta, and his Deputy President, Mr William Ruto, the latter being a vocal supporter of the projects... While the two belong to the same party, Mr Ruto is expected to run in the 2022 presidential elections and challenge Mr Kenyatta's faction," reads the court papers.
"It seems hardly coincidental that the highest-ranking official to be investigated and charged in the criminal proceedings is Kenya's Treasury Cabinet Secretary, Mr Henry Rotich, an ally of Mr Ruto," states the court document.
Mr Rotich was recently charged afresh together with former Kerio Valley Development Authority (KVDA) managing director David Kimosop, Kennedy Nyakundi (chief economist- Treasury), Jackson Njau Kinyanjui (director of resource mobilisation- Treasury) and Mr Titus Muriithi, the inspector general of State corporations.
The prosecution dropped 18 Italians who own the companies from the case and intends to charge them separately.
The Italian firms said based on Press reports, they can confirm that they fell victim of a political struggle between President Kenyatta and Dr Ruto.
"The above explains how and why a joint venture of respected world class engineering and construction companies, with an impressive track record of major works world-wide was entangled in criminal proceedings in Kenya, charged with conspiring with no less a State entity (KVDA), a Kenyan ministry (Treasury) and possible even with international first-rate banks and Italian credit agency," the firms state.
Projects were politicised
The Italian firms said it was not until 2019, two years after the conclusion of the contracts, that investigations pointed at a number of alleged illegalities in connection with the projects.
They maintained that they were not involved in any irregularity and all that they did was to tender for the two contracts in compliance with the tender instructions issued by the KVDA.
They claim that KVDA has admitted that the projects were politicised with an intention of terminating them to the disadvantage of the communities, an indication that the allegations of irregularity may well be just an element of this political battle.
They said although they had no role in procuring the loans, the projects complied with all the laws and tender requirements and the advance payments received from the KVDA were put into proper use including mobilisation purposes and for the needs of the contracts in accordance with KVDA's requests at the time of events.
The Italian firms sued Kenya before the international court last December, demanding more than Sh11 billion for cancelling the contracts.
"Accordingly, order KVDA to pay the claimants all the amounts provisionally indicated as US$114,177,645, or any other different sum that will result due to claimants in the course of the proceedings, plus interest as applicable," say the court papers.
The Director of Public Prosecutions (DPP) has accused Mr Rotich of hiding behind government-to-government procurement to single source privately owned Italian Insurance company SACE (an Italian export credit agency offering insurance) policy valued at Sh11 billion, an amount that was allegedly inflated by more than 400 percent.
Evidence presented in court by the prosecution allege that CMC Di Ravenna- Itinera JV was paid Sh4.3 billion on September 27, 2018 as advance payment for Arror dam.
For Kimwarer dam, an advance payment of Sh3.5 billion was allegedly approved on July 2, 2018.
The payments in two tranches were made to a web of associated companies in Kenya, South Africa and Italy that were not on tender documents, according to the DPP.
The bidder, according to court documents, was Cooperativa Muratori & Cementisi CMC Ravenna- Societa Cooperativa.
They declared a joint venture known as Aecom South Africa PTY Ltd but the company that was issued with the letter of award was CMC Di Ravenna South Africa while payments were made to CMC Di Ravena/Itinera JV Kenya Branch.
Mr Rotich has challenged his prosecution, questioning why former Environment and Regional Development Cabinet Secretary Judi Wakhungu and experts from the ministry were left out. He said he signed the agreements at the tail end as part of his statutory responsibilities.
The DPP dropped charges against former Treasury Principal Secretary (PS) Kamau Thugge and Susan Koech, a former PS in the Environment ministry, and plans to use them as witnesses in the trial against Mr Rotich.