EACC accused of defying DPP advice in Sh6.2b NYS suppliers' payment case

Suppliers whose payments worth Sh6.2 billion were frozen over claims of fraud have accused the EACC of ignoring advice from DPP Renson Ing’onga to close the case against them.

The new twist has emerged in a fresh High Court application filed by Tison Limited and former National Youth Service (NYS) Director of Finance Samwel Mudanyi Wachenje seeking to lift injunctive orders issued by Justice Lucy Njuguna which halted the payment of the billions over claims linked to the alleged NYS “air” suppliers scandal.

They argue that the EACC acted unlawfully by securing freezing orders while ignoring two binding directives by DPP Ing’onga which instructed the commission to close the case after finding insufficient evidence to sustain fraud claims or prosecute them.

“The applicants contend that the DPP directed that the matter be closed for lack of evidence, but the EACC has persisted in pursuing the case and maintaining freezing orders,” the court papers state.

Tison and Wachenje also say the freezing orders were obtained on the basis of material non-disclosure by the EACC, which failed to tender in court two letters from the DPP directing it to drop the case.

The disputed orders restrain the NYS, its agents, and officers from processing payment vouchers valued at Sh6,167,797,655 to several companies, including Tison Limited and others alleged to have submitted fictitious claims over ghost supplies.

Affected suppliers include Tison Limited, six companies linked to businessman Benson Gethi Wangui, Schoolwork Enterprises, Newtool Mart Trading, Ratego Technologies, Realtool Trading, Comptool Trading, Horizon Limited, Liz Link General Suppliers, Link General, and Jimchar Enterprises Limited.

The EACC wants the payments declared fraudulent and permanently cancelled stating that the suppliers submitted 277 Local Purchase Orders (LPOs), delivery notes, and invoices for goods supposedly procured across multiple financial years since 2013, which were never delivered.

Investigators claim NYS officials colluded with suppliers to falsify supporting documents.

However, Tison Limited informs the court that it is seeking Sh949.6 million payment for the supply of 45,220 units of milk powder to NYS between April and November 2015.

“Contrary to what is being claimed by the EACC, we factually supplied goods legally to NYS and submitted all documentation for payment but have never been paid to date,” says Michael Tyson Otieno, a director of Tison, in a sworn affidavit.

“The payment of what is legally owed to the applicant (Tison Limited) by the Government cannot in any way be baptised as loss of public funds given that their claims are genuine, legitimate, and there is no evidence of fraud.”

Wachenje, who served as NYS Director of Finance at the time, has told the court that he has never been charged in relation to Sh6 billion fraud and that the continued payment preservation orders violate his constitutional rights.

He maintains that allegations against him collapsed after the DPP reviewed the inquiry file and ordered the case closed.

A letter dated June 5, 2024, filed in court, shows that the DPP informed the EACC that investigations under Inquiry File No. 171/2019 could not be sustained.

“Upon further perusal of the resubmitted file and consideration of the evidence contained therein, we note that the evidence is not sufficient to support the recommended charges against the suspects,” the DPP responded to EACC letter seeking prosecution of the suppliers and NYS officials on allegations of irregular payment claims to amounting to Sh6 billion through pending bills by NYS.

“It is therefore apparent on the face of the record that the numerous discrepancies in the evidence will hinder the Prosecution from discharging its mandate of proving the proposed charges against the suspects to the required standard in law. Accordingly, the DPP has directed that the EACC Inquiry File No. 171/2019 be closed,” the letter reads, adding that key witnesses were facing prosecution alongside two former Devolution PSs, Peter Mangiti and Lilian Omollo.

A subsequent letter dated May 7, 2025, reaffirmed the decision, with the DPP stating there was no evidence to warrant a review of the earlier directions closing the case prosecution of the NYS suspects of Sh6 billion fraud.

The applicants further accused the EACC of material non-disclosure, saying it failed to inform the court of recommendations by the Attorney-General, two Inter-Agency Pending Bills Committees, and the Directorate of Criminal Investigations (DCI), all of which cleared the bills for payment.

They argue that the EACC strategically filed the suit days before the expiry of the mandate of the Pending Bills Verification Committee on December 31, 2025, effectively locking them out of the verification process.

“The application is frivolous, scandalous, and vexatious and amounts to an abuse of the court process,” Otieno said, adding that the balance of convenience favours lifting the orders.

The EACC, through investigator Catherine Ngari, maintains its actions are justified, citing investigations that established goods were never delivered and several documents were falsified.

“Our investigations established that the suppliers, in connivance with the NYS officials, contrived a fraudulent scheme to embezzle public funds allocated to NYS through fictitious procurement contracts,” the EACC said.

The commission further alleges that Wachenje abused his office by signing 245 out of 277 LPOs, despite allegedly knowing they were fictitious.

The NYS scandal, which first emerged nearly a decade ago, has seen multiple legal battles, prosecutions, and civil suits as investigations continue into alleged loss of public funds through irregular procurement and billing practices.