REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS CIVIL DIVISION MISCELLANEOUS APPLICATION NO. 601 OF 2015 IN THE MATTER OF: AN APPLICATION BY THE ASSETS RECOVERY AGENCY FOR ORDERS UNDER SECTIONS 81, 82 AND 87 OF THE PROCEEDS OF CRIME AND ANTI-MONEY LAUNDERING ACT READ WITH ORDER 51 OF THE CIVIL PROCEDURE RULES TO PROHIBIT THE TRANSFER AND OR DISPOSAL OFF OR OTHER DEALINGS (HOWESOEVER DESCRIBED) WITH THE PROPERTY KNOWN AS MAISONETTE HOUSE AT KASARANI LR NO 20857/190, PLOT NUMBER L.R NO RUIRU JUJA EAST BLOCK 2/360, MOTOR VEHICLE TOYOTA PRADO REGISTRATION NUMBER KCD 536P, REGISTRATION NUMBER KCE 874R STATION WAGON TOYOTA PRADO. BETWEEN THE ASSETS RECOVERY AGENCY…………………………APPLICANT AND SAMWEL WACHENJE alias SAM MWADIME ……1ST RESPONDENT SUSAN MKIWA MNDANYI…………………………….2ND RESPONDENT VANDAMME JOHN…………………………….…………3RD RESPONDENT ANTHONY KIHARA GETHI………………….…………4TH RESPONDENT CHARITY WANGUI GETHI………..………….………..5TH RESPONDENT NDUNGU JOHN…………………………………….……..6TH RESPONDENT GACHOKA PAUL …………………………………………7TH RESPONDENT JAMES KISINGO………………………………………..8TH RESPONDENT AND JANE KABURA ………………………INTENDED INTERESTED PARTY NOTICE OF MOTION (Order1 and order 51 Of the Civil procedure Act cap 21,and all other enabling provisions of the law. ) TAKE NOTICE that this honourable court will be moved on the day of 2015 at 9 O’clock in the forenoon or so soon thereafter as the matter may be reached for hearing of an application on the part of Counsel for JANE KABURA the intended Interested Party /applicant herein for ORDERS THAT 1. THAT Jane Kabura be enjoined in these proceedings as an Interested Party . 2. That Jane Kabura do file pleadingsand responses in this matter 3. THAT the costs of this application be provided for. WHICH APPLICATION is grounded on the affidavit of JANE KABURA the Intended Interested Party / Applicant herein and on the following grounds: 1. THE proceedings herein commenced by the ASSETS RECOVERY AGENCY are a misuse of the court process aimed at shielding real players in the alleged embezzlement of public funds . 2. THE proceedings touch on me personally and the my companies and the payments made to my companies in ordinary course of business . 3. THERE is a necessity that the court appreciates proper facts into the affair and be able to give an informed finding 4. The Applicants herein the Assets Recovery Agency have peddled falsehoods misleading the court into issuing orders to the detriment of innocent third parties. DATED at NAIROBI this day of 2016. ____________________________________ XXXXXX ADVOCATES FOR THE INTENDED INTERESTED PARTY DRAWN AND FILED BY ************* TO BE SERVED UPON Oraro & Company Advocates 6th Floor ACK Gardens Annex 1st Ngong Avenue, P.O. Box 51236-00200 NAIROBI. The Assets Recovery Agency. Attorney Generals Chambers NAIROBI. MMA Advocates, LLP Trans National Plaza, 9th Floor Wing B City Hall Way , Opp. The Supreme Court, Tel +254-733-121-000/0708-222-111 E mail : [email protected] P.O. Box 112233-00100 NAIROBI. Wagara, Koyyoko & Company Advocates Elgon Court, Block A Apartment A4 Ralph Bunche Road P.O. Box 4078-00100 NAIROBI. Email: [email protected] Josephine Kabura Irungu Sam M Mwadime Martin Muthomi Gitonga Jedida Wangui Gethi P.O. Box 12633-10109 NYERI. IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS CIVIL DIVISION MISCELLANEOUS APPLICATION NO. 601 OF 2015 IN THE MATTER OF: AN APPLICATION BY THE ASSETS RECOVERY AGENCY FOR ORDERS UNDER SECTIONS 81, 82 AND 87 OF THE PROCEEDS OF CRIME AND ANTI-MONEY LAUNDERING ACT READ WITH ORDER 51 OF THE CIVIL PROCEDURE RULES TO PROHIBIT THE TRANSFER AND OR DISPOSAL OFF OR OTHER DEALINGS (HOWESOEVER DESCRIBED) WITH THE PROPERTY KNOWN AS MAISONETTE HOUSE AT KASARANI LR NO 20857/190, PLOT NUMBER L.R NO RUIRU JUJA EAST BLOCK 2/360, MOTOR VEHICLE TOYOTA PRADO REGISTRATION NUMBER KCD 536P, REGISTRATION NUMBER KCE 874R STATION WAGON TOYOTA PRADO. BETWEEN THE ASSETS RECOVERY AGENCY…………………………APPLICANT AND SAMWEL WACHENJE alias SAM MWADIME ……1ST RESPONDENT SUSAN MKIWA MNDANYI…………………………..….2ND RESPONDENT VANDAMME JOHN…………………………….…………3RD RESPONDENT ANTHONY KIHARA GETHI … …………………………4TH RESPONDENT CHARITY WANGUI GETHI ………..…………..……..5TH RESPONDENT NDUNGU JOHN …………………………………….……..6TH RESPONDENT GACHOKA PAUL …………………………………………7TH RESPONDENT JAMES KISINGO ………………………………………..8TH RESPONDENT JANE KABURA ………………………INTENDED INTERESTED PARTY SUPPORTING AFFIDAVIT. I I, ………………………….., a resident of Nairobi County and of Post Office Box Number……Nairobi in the Republic of Kenya do hereby make oath and solemnly swear ad state as follows: 1. THAT I am a female adult of sound mind residing and working for gain in Nairobi and elsewhere and one of the parties in this case and hence competent to swear this affidavit. 2. THAT I am a business lady and a general merchant undertaking numerous projects in both the private and public sectors. 3. THAT I do my businesses through a chain of over twenty (20) duly registered companies. 4. THAT I source my businesses through either the normal procurement process for the public sector and/or private engagement with the procuring entities for the private sector. 5. THAT I am involved in business with is the National Youth Service (NYS).and involved in supply of building materials . 6. THAT through these I have raised invoices and the NYS has always paid for the works done and services delivered through the Ministry of Devolution & Planning in the normal course of business. 7. THAT with regard to the contracts under investigations by several Government agencies and which form the basis of this case, I wish to state as follows. 8. THAT I met Ann Mumbi Waiguru (former Cabinet Secretary) while working at KDN between April and May 2012 and WE became friends and great acquaintances. 9. THAT at her request, I took my CV personally to her at her house in Runda I found her in the house where we exchanged greetings and she introduced me to her sons Ian Ron and Don. 10. THAT during the time we met, she drove a maroon Mercedes Benz C200 but she later replaced it with the new Mitsubishi Pajero gold in color. 11.THAT after introduction and light discussion I gave her my CV and we plunged into the issue of how she could assist me do business with various Government and private organizations . 12.THAT she informed me she could link me with influential and resourceful contractors at the Finance Ministry including a Mr Karani Nyamu who she said she had introduced ( a close friend& Business associate of her’s ) whom she told me she had assisted in securing major contracts through his companies Verve K.O, and Zinga technologies( Which do ICT consulting and Major ICT project Implementation ). 13.THAT during this time I was interested in securing ICT jobs like the supply or service delivery at the IFMIS directorate where she worked as a Director. 14.THAT we soon started off by her giving me small jobs like having my technician maintain her silver Mac book Laptop which I gathered was quite dear to her . 15.THAT in the year 2013 it was campaign time and the issue of IFMIS and Minstry of Finance contracts was overtaken by events but she told me that she was heavily involved with the now Ruling Party in their campaign to ensure that they won the elections .she assured me that if the now Ruling party won the elactions she will be appointed a cabinet Secretary and would then do business with me . 16.THAT Madam Waiguru was appointed cabinet secretary ministry of planning and devolution . 17.THAT from about June 2014 I started getting small jobs for the supply of General stationery. 18.THAT sometime in mid August 2014 the Cabinet Secretary invited me to her house in Runda and requested me to bring along the following personal Documents a) Copy of my national identification card b) Passport size photos c) Copy of my PIN Certificate. To facilitate the incorporation of companies. 19.THAT when I arrived in her house her driver AINEA ushered me into the house and she found me already seated at her lounge . I gave her the documents and she assured me that she would assist me in having the companies registered without any delay 20.THAT during the period between August and September 2014 the Cabinet Secretary introduced me to the following -i) Her Peronal assistant , Betty Maina . ii) Hassan Noor the Director of Planning Devolution Ministry. iii) Adan Harake wjo was then poised for a senior position in the administrative and financial structure in the National Youth Service. iv) Mutahi Ngunyi a consultant at NYS . she informed me that these people will be of assistance in processing of tenders and payments for the goods supplied and services rendered. 21.THAT on the 7th October 2014 Betty Maina called me and requested for a meetimg at a restaurant near Uchumi House Nairobi, I proceeded to the venue as agreed had a cup of tea and then she gave me about seven copies of certificates of incorporation of the companies the CS had assisted to be registered. 22.THAT subsequently the Cabinet Secretary instructed me to open bank accounts for the companies at Family Bank and specifically at Kenya Tea Development Authority Plaza Branch. 23.THAT with these companies duly registered I was no poised to honest business with the National Youth Service. 24.THAT in the month of November 2014 I received my first Local Purchase order ( LPO) for the delivery of construction materials for the Kibera project by Hassan Noor . 25.THAT upon delivery of the materials ordered in the said LPO Mr Mutahi Ngunyi gave me details of an account to which he had instructed that I deposit Ksh 1.5 Million. 26.THAT I held regular Sunday meetings with Mr Harake , Hassan Noor and other officials at NYS Head Quarters where we shared and brainstormed on the deliveries and accomplished pending suppliers and payments and the upcoming LPOS .