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The ethics team contests that the dues are based on forged invoices.
In a ruling made on Friday by the Court of Appeal, a three-judge bench made up of Justice Alnashir Visram, J W Mwera and K M’inoti, said that the evidence that the Ethic and Anti-Corruption Commission seeks to bring in the case was touching on the core of the contract.
According to its lawyer Ben Murei, the commission obtained evidence from South Africa that a claim made against the national grain reservoir by Erad Supplies and General Contractors for storage charges running into Sh103 million was based on fake documents.
Erad Supplies told the court that storage costs incurred between September 2004 and January 2005 were based on invoices of $1,146,000 from Chelsea Freight, a company based in South Africa.
However, directors of Chelsea Freight, Mr Thilogan Pillay and Mr Freddy Chetty, disowned the allegations by Erad Supplies in separate affidavits noting that the invoices did not emanate from their offices.
The two also stated that they did not know a company, which was said to have supplied maize they stored.
“We never owned any storage facilities or warehouse and at no time had they stored any maize.”
In 2004, following an acute shortage of maize in the country, which saw the national grain reserve completely depleted, the board floated a tender for the supply of 180,000 tonnes of white maize to shore up its reserves.
It was then that Erad Supplies was contracted to supply 40,000 tonnes of white maize at a price of $229 (about Sh20,000) per tonne.
NO MAIZE DELIVERY
The company was required to ship the maize to Mombasa port within four weeks from the date of signing the contract.
However, soon after, a dispute arose between the board and ultimately no maize was delivered as agreed.
Erad Supplies then referred the disagreement to an arbitrator seeking a performance bond of $932,000 (Sh84 million). Mr Murei argued that the ethics commission had a fundamental mandate to fight and combat corruption.
Agreeing with him, the judges said that the anti-graft watchdog’s role was not merely statutory.
“It is traceable in the Constitution which demands among other things that public money must be used in prudent and responsible manner.”
The judges therefore allowed the anti-graft authority to be enjoined as an interested party in the case pursuant to the reasoning that they should be afforded an opportunity to be heard at whatever cost.
PARASTATAL heads who signed the Mombasa port community charter risk being sacked if their agencies do not deliver on the contents of the new entity. The charter signed between the government and the private sector aims at improving the movement of cargo from the port into hinterland