Football Kenya Federation president Nick Mwendwa has lost his attempt to stop arrest and prosecution over misappropriation of funds at
Kandanda House after the High Court has dismissed a petition he had filed to gag the Directorate of Criminal Investigations and the
Director of Public Prosecutions.
Mwendwa had, on October 1 2020 through lawyer Tom Ojjenda, sued DCI and the DPP alongside journalist Milton Nyakundi, who had filed a complaint with the Banking Fraud Investigations Unit of DCI, seeking the court to find that Nyakundi had no locus to complain over FKF matters since he was not a member of the federation.
However, Justice James Makau dismissed the petition saying it lacked merit, was premature and speculative.
"I therefore find the petitioners' prayer for an order of a permanent injunction prohibiting the DCI and DPP summoning, investigating,charging or prosecuting the petitioners with respect to financial management of FKF is not justified in the circumstances of this case,"declared Justice Makau.
"The instant petition is premature and purely speculative."
Nyakundi had petitioned the BFIU and the Ethics and Anti-Corruption Commission to investigate fictitious transactions at Kandanda House, including direct transfer of funds from the federation's to Mwendwa's
personal accounts. The Auditor General's report for 2018/19 had flagged KSh11 million paid to Mwendwa without proper documentation.
In his submissions during the hearing, Mwendwa had argued that the summons by the DCI amounted to a violation of his fundamental rights
as enshrined in the Constitution and that the procedure to summon him for statement recording had contravened the Fair Administrative Action
Act.
"It has not been demonstrated how the DCI and DPP have acted ultra vires or against the law in investigating a complaint by a member of
the public (Nyakundi)," the judge said in his 36-page decision.
He had also maintained that acting on Nyakundi's complaint was inappropriate for the reason that he (Nyakundi) was not a member of
the FKF and that all financial transactions had been given a clean bill of health by the federation's members through the internal audit
systems.
"The Petitioners claim that the FKF Constitution and the FIFA Statutes provides for a comprehensive mechanism of financial audit of all monies received by the FKF.
"However, I am not convinced that the existence of an audit mechanism negates the investigative jurisdiction of the DCI and the DPP and specifically where a complaint of a financial crime has been made.
"I am unconvinced that the DCI and DPP have acted outside their mandate."
Nyakundi argued that he had the right to move the court to seek recourse because FKF receives millions of money from the public coffers and therefore accountability for such funds must be subjected to public finance management laws and regulations.
"I find the effect of Section 46(6) of the Sports Act is clear that every member of the public has the right to invoke Constitutional provisions to appraise themselves with whatever they feel they deserve to know about the affairs of FKF.
"I find that Milton Nyakundi has every right as a member of the public to seek information as clearly provided in the constitution."
The DCI and the DPP, on their part, had submitted that the investigations were just part of the judicial system and did not necessarily mean one is guilty, adding that only a court of law had the authority to find if Mwendwa was guilty or not upon interrogating evidence presented before it by the DPP.
The decision comes when Kenyans are furious with Mwendwa follwoing Kenya's disastrous performance in World Cup Qatar 2022, with calls for his resignation.
Mwendwa is also under the radar of investigators over alleged misappropriation of hundreds of millions of taxpayers' money, including KSh244 million given to the federation by the exchequer for the 2019 Africa Cup of Nations in Egypt. He is also facing questions over KSh125 million paid to British firm - WTS Media Group - for an Outside Broadcasting equipment, which has never been delivered.
WTS went into receivership a few months after FKF allegedly paid the money in late 2017 and this judgement now piles on the DCI and DPP to
move with speed with a view to unearthing the inefficiencies going on at Kandanda House during Mwendwa's regime.