How lack of evidence set free suspects in NCPB fake fertiliser scam

Former National Cereals and Produce Board Managing Director Joseph Muna Kimote has been acquitted of graft charges linked to a Sh209.5 million fake fertiliser scandal due to lack of evidence.

On Tuesday, Milimani Chief Magistrate Celesa Asis Okore found that the prosecution had failed to prove corruption, including conspiracy to defraud farmers of millions of shillings, against Kimote and five co-accused: John Kiplangat Ngetich, John Mbaya Matiri, Fifty-One Capital (K) and SBL Innovative Manufacturers.

“The prosecution has been malefaced to prove itself against all the accused persons in respect of count number one of conspiracy to defraud and accused number two, Kimote, in respect of count number seven of abuse of office. I consequently acquit them under Section 210 of the Criminal Procedure Code,” the magistrate ruled.

The court also found that the prosecution had not proved its case against Kimote’s co-accused, Kiplangat, Mbaya, and two firms, Fifty-One Capital (K), and SBL Innovative Manufacturers, on eight other corruption charges, to order each of them to mount a defence.

“It may not hold that the prosecution has proved a prima facie case against accused one, three, four, five, and six in respect of charges in count number two, three, four, five, six, eight, nine, and ten sufficiently to warrant them to make a defense,” Okore ruled.

Kimote and the co-accused were facing ten counts, including allegations that they conspired to defraud the public by selling substandard soil amendments and fertilisers.

He was accused of abusing his office by executing an agency contract between NCPB and two private companies, Fifty-One Capital (K) and SBL Innovative Manufacturers, which the prosecution claimed were non-existent.

The alleged offences occurred between March 2022 and March 2024. Kimote, through his lawyer Kimani Wachira, argued that the prosecution had failed to establish a prima facie case against him.

“There was no evidence of a ‘meeting of minds’ between Kimote and the co-accused to constitute a conspiracy, and the agency contract he executed was done within the scope of his duties as NCPB Managing Director. He did not personally benefit from the contract and cannot be held liable for abuse of office or fraud,” Kimani submitted.

Magistrate Okore faulted the DPP for failing to prove the “meeting of minds” required for a criminal conspiracy.

“The prosecution has failed to produce and demonstrate an agreement between the accused persons, or clear communication, whether electronically or physically, to that effect. Instead, what has been demonstrated are institutional procedures and corporate laxness, which cannot constitute a criminal conspiracy,” she stated.

Regarding the abuse of office charge, the court noted that Mr Kimote, as Managing Director, did not have sole authority to approve or reject contracts, reject contracts independently of the NCPB Board or relevant committees.

“It has not been proved that the accused benefited personally from the process, and he ought not to carry blame for failures by other officers,” Magistrate Okore said.

“It is therefore my considered opinion that the MD Kimote was unfairly charged in this matter. In fact, in my humble view, he ought to have been converted into a state witness.”

She further found that Kimote did not personally benefit from the alleged scheme.

“To add on that, it has not been proved that accused number two benefited from the process, and so it cannot be said that he used his office to confer anything whatsoever to anyone,” she ruled.

“The upshot is that the prosecution has failed to prove its allegations with regard to charges in count number seven of abuse of office against accused number two, Kimote.” 

Magistrate Okore consequently dismissed the charges under Section 210 of the Criminal Procedure Code, clearing Kimote and his co-accused. 

She also ordered that their cash bail and passport, which had been deposited in court, be refunded.