A web of companies associated with Meru Senator Mithika Linturi and former presidential candidate Ekuru Aukot are locked in a battle for the proceeds of a Sh2.1 billion contract for the supply of digital driving licences.
The raging battle filed before the High Court in Nairobi reveals behind-the-scenes intrigues that characterise lucrative government contracts and power play between the political class and State agencies.
Mr Linturi’s firms, Atticon Limited and Ushindi Credit Limited, are pitted against Ekuru Aukot Advocates among other companies that are all laying claim to cash related to the contract to supply new-generation digital driving licences to all Kenyan motorists.
A consortium of firms led by the National Bank of Kenya (NBK) won the National Transport and Safety Authority (NTSA) tender in 2015, defeating 22 companies that had also lodged bids to supply the licences.
Issuance of the digital licensees is currently under way but the roll-out, which was slated for mid-2016, was delayed by protracted court cases that were eventually settled out of court.
This then paved the way for the signing of the contract between NTSA and the consortium in early 2017.
Mr Linturi’s firms, Atticon and Ushindi Credit Limited, have a common operations manager, Ms Emily Nkirote Buantai.
She swore affidavits on behalf of the two companies. Atticon was at the centre of a separate legal suit pending at the Milimani Law Courts in which Mr Linturi’s estranged wife has accused the Senator of forging signatures to secure a Sh530 million bank loan using her properties as collateral.
At the heart of the licences conflict is a behind-the-scenes deal that settled a legal battle emanating from the tender award, with Aukot’s firm facing accusations of fraudulently receiving cash on behalf of one of the companies in the suit.
Atticon and Ushindi have accused another company, Pesa Print Limited, which was part of the consortium, of failing to remit Sh80 million from the contract cash paid by the NTSA.
“The claimants have suffered loss and damage in the sum of Sh80 million, as a result of the respondent’s failure to repay the loans – and risk suffering even greater loss and damage unless the arbitrator intervenes,” Ms Nkirote told the arbitrator hearing the dispute.
Atticon Limited claims that Pesa Print failed to pay back a bank guarantee of Sh50 million despite receiving payment from the NTSA.
Pesa Print had also allegedly entered into a deal with Ushindi Credit Limited on the other hand for the payment of Sh30 million from the NTSA proceeds, emanating from the challenging of the award of the tender.
The arbitrator, Mr John Ohaga, in September 2018, ordered Pesa Print Limited to pay the two firms Sh80 million, prompting Pesa Print Limited to move to the High Court.
In its High Court petition, Pesa Print has enjoined the firm of Ekuru Aukot, which it claims received Sh20 million from it, allegedly on behalf of its client Ushindi Credit Limited.
Pesa Print Limited says that it channelled the remaining Sh10 million through Symphony Technologies for onward transmission to Ushindi Credit Limited.
Symphony Technologies was one of the companies that lost the driving licence tender to the NBK-led consortium.
It challenged the award at the procurement board but lost. It later filed an appeal in court but later dropped the case.
This revelation introduced a new twist to the case with Ushindi Credit Limited denying ever instructing Ekuru Aukot to represent it or receiving any such cash from the firm. On October 31, 2018, Pesa Print wrote to the firm of Ekuru Aukot accusing it of being an accomplice in defrauding it.
“There is a possibility that there was a conspiracy to defraud our client, and to unjustly enrich Ushindi on whose behalf you received money from our clients,” Pesa Print told Aukot’s firm in a letter copied to the Directorate of Criminal Investigations, the Ethics and Anti-Corruption Commission and the Law Society of Kenya.
No document has been filed in court by the law firm to rebut the allegations. Regarding its indebtedness to Atticon, the firm had claimed that the bank guarantee that was deposited at Family Bank was never utilised by Symphony since it paid out the Sh104 million before it fell due.
Pesa Print enjoined Family Bank and Symphony in the High Court suit seeking to set aside the award, arguing that they could demystify the stalemate.
However, Family Bank and Symphony Technologies, in their court filings, said that they did not participate in the initial suit and requested to be excused from the case.