Full Gladys Shollei's reponse to JSC by robertalai

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									             FINAL REPORT

       RESPONSE TO QUERIES RAISED BY THE JUDICIAL
                    SERVICE COMMISSION

                               BY


                 GLADYS BOSS SHOLLEI, CBS
            ADVOCATE OF THE HIGH COURT OF KENYA
                   DIP KSL, LLB,LLM,MBA

  CHIEF REGISTRAR OF THE JUDICIARY/ACCOUNTING OFFICER OF THE
 JUDICIARY/ADMINISTRATOR OF THE JUDICIARY FUND/SECRETARY OF
                 THE JUDICIAL SERVICE COMMISSION




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RESPONSE TO QUERIES RAISED BY THE JUDICIAL SERVICE COMMISSION
DATED 10TH SEPTEMBER 2013

    INTRODUCTION:

    1. From the onset and before proceeding to answer the queries in detail, I
        wish to clarify that it is my honest, professional and legal opinion that
        the Judicial Service Commission (JSC) and the Judiciary are according to
        the Constitution and other relevant laws, separate and distinct
                                                      One    is    an   Independent
        Constitutional Commission; the other is an arm of Government.
        entities   with    different    mandates.


    2. The JSC is established under Article 171 of the Constitution. It is an
        independent Commission as provided under Article 248. It is in
        accordance to Articles 253, a body corporate with perpetual
        succession. It is therefore distinct from the Judiciary.




    3. Article 172 (1) of the Constitution lays down the JSC’s functions as
        Mandate of the Judicial Service Commission


        follows:


              172. (1) The Judicial Service Commission shall promote and
              facilitate the independence and accountability of the judiciary and
              the efficient, effective and transparent administration of justice and
              shall—
              (a) recommend to the President persons for appointment as
              judges;



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              (b review and make recommendations on the conditions of
              service of—
              (i) judges and judicial officers, other than their remuneration;
              and
              (ii) the staff of the Judiciary;
              (c) to appoint, receive complaints against, investigate and
              remove from office or otherwise discipline registrars,
              magistrates, other judicial officers and other staff of the
              Judiciary, in the manner prescribed by an Act of Parliament;
              (d) to prepare and implement programmes for the continuing
              education and training of judges and judicial officers; and
              (e) to advise the national government on improving the
              efficiency of the administration of justice.

        The four point mandate articulated above is the core business of the JSC.

        The Judicial Service Act through section 13 further expounds on the
        role of the JSC. It provides as follows:

              13.(1) In addition to the powers of the Commission under Article
              253 of the Constitution, the Commission shall have the power to -
              (a) purchase or otherwise acquire, hold, charge and dispose of
              movable or immovable property;
              (b) borrow and lend money;
              (c) enter into contracts
              (d) do or perform all such other things or acts necessary for the
              proper performance of its functions under the Constitution and this
              Act which may be lawfully done or performed by a body corporate.

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        In addition the JSC is tasked with developing regulations for the better
        administration of justice under section 47 of the Act. It provides as
        follows:

              47.(1) The Commission may make regulations for the better
              carrying out of the purposes of this Act.

              (2) Without prejudice to the generality of subsection (1), such
              regulations may provide for—

              (a) the code of conduct and ethics for judges, other judicial officers
              and staff;
              (b) the administration and management of the services and
              facilities of the Commission for the discharge of judicial functions;
              (c) preliminary procedures for making any recommendations
              required to be made under the Constitution;
              (d) the financial procedures of the Commission;
              (e) orientation and training for judicial officers and staff;
              (f) the management of issues of conflict of interest;
              (g) performance appraisal system of the Judiciary;
              (h) the security of judicial officers and staff; and
              (i) mainstreaming of gender and regional equity in the Judiciary.
              (3) Regulations made under this section shall be presented to the
              National Assembly for debate and approval before they take effect




    4. The Constitution of Kenya provides for the mandate of the Chief
              Mandate of the Chief Registrar of the Judiciary


        Registrar of the Judiciary as follows:

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               Article 161 (2) (c) Chief Registrar of the Judiciary, who shall be
               the Chief Administrator and Accounting Officer of the Judiciary.

               Article 173. (1) There is established a fund to be known as the
               Judiciary Fund which shall be administered by the Chief
               Registrar of the Judiciary.

               Art.171(2)(3) The Chief Registrar of the Judiciary shall be the
               Secretary to the Commission.

    5. The Judicial Service Act expounds on the mandate of the Chief Registrar
        of the Judiciary. Section 8(1) provides as follows:
            In addition to the functions conferred by Article 161 of the
            Constitution, the Chief Registrar shall, in particular—
        (a)    be responsible for the overall administration and management
            of the Judiciary;
        (b)perform judicial functions vested in the office of the Chief Registrar by
            law;
        (c) exercise powers vested in the office of the Chief Registrar by virtue of
            any law or regulation and give effect to the directions of the Chief
            Justice;
        (d)account for any service in respect of which monies have been
            appropriated by Parliament and for which issues are made from
            the exchequer account;
        (e)    be the authorized officer for the Judiciary, who shall be
            responsible for the efficient management of the day-to-day
            operations and administration of human resources in the judicial
            service;




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        (f) be in-charge of support services in the Judiciary and in particular
            planning, and development, and the organization of staff;
        (g)monitor and enhance administration and office procedures to
            maximize on efficiency and the quality of service;
        (h)    plan, prepare, implement and monitor the budget and collect,
            receive and account for revenue;
        (i) prepare reports and proposals on administrative issues;
        (j) beincharge of the procurement of all stores, and the management
            and maintenance of all physical facilities;
        (k)    maintain and develop co-operation with key staff in the public
            service and other institutions and agencies; and
        (l) ensure the efficient devolution of the administrative units to
            county levels, including a High Court Division in each county;
        (m)    perform such other duties as may be assigned by the Chief Justice


    6. The Public Finance and Management Act provides as follows:
            from time to time.


        66. (1) Subject to the Constitution, the accounting officer of the
        Judiciary, Parliamentary Service Commission constitutional commissions
        and independent offices shall monitor, evaluate and oversee the
        management of public finances in their respective entities, including—
        (a) the promotion        and enforcement of transparency, effective
        management and accountability with regard to the use of public finances;
        (b) ensuring that accounting standards are applied;
        (c) the implementation of financial policies in relation to public
        finances;



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        (d) ensuring proper management and control of, and accounting for,
        their finances in order to promote the efficient and effective use of
        budgetary resources;
        (e) the preparation of annual estimates of expenditures;
        (f) acting as custodian of the entity's assets, except where provided
        otherwise by any other legislation or the Constitution;
        (g) monitoring the management of public finances and their
        financial performance;
        (h) making quarterly reports to the National Assembly on the
        implementation of their budget; and
        (i) taking such other actions, not inconsistent with the Constitution, as
        shall further the implementation of this Act



        Accountabilityfor Judiciary Funds

    7. The Constitution provides under Article 226 (2)(3)as follows:
        226(2) Theaccounting officer of a national public entity is
        accountable to the National Assembly for its financial management,
        (3) Subject to clause (4), the accounts of all governments and State
        organs shall be audited by the Auditor-General.

        8.   The Public Finance and Management Act mandates the Chief
        Registrar as follows:

        68. (1) An accounting officer for a national government entity,
        Parliamentary Service Commission and the Judiciary shall be
        accountable to the National Assembly for ensuring that the resources of


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        the respective entity for which he or she is the accounting officer are used
        in a way that is—

              (a) lawful and authorised; and

              (b) effective, efficient, economical and transparent.

        9. Accountability to the National Assembly is practically exercised
        through the Internal Auditor General at National Treasury, the Kenya
        National Audit Office (KENAO), the Auditor General, Controller of
        Budget, the Budget and Appropriations Committee, the Justice and Legal
        Affairs Committee and the Public Accounts Committee (PAC) of the
        National Assembly.

        10. In terms of procurement, The Public Procurement and Oversight
        Authority(PPOA) established under the Public Procurement and
        Disposal Act 2005 (PPDA) has the responsibility under section 9 to
        ensure that the procurement procedures established under the Act are
        complied with.

        Oversight by the JSC Over The Judiciary

    10. Although the JSC exercises supervision over the JSC’s own budget and
        resources it has no supervisory role over procurement, financial
        management       or   expenditure     of   the   Judiciary    budget.     That
        notwithstanding, the JSC does have input in the Judiciary budget as
        provided by section 49(2) of the Judicial Service Act but not in the
        implementation of the budget once approved by Parliament. The day to
        day management of the Judiciary falls directly under the mandate of the


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        Office of the Chief Registrar under the Judicial Service Act which
        outlines the legal duties and responsibilities
    11. Section 68(2)(f) of the Public Finance and Management Act states
        that the accounting officer shall “bring any matter to the attention of
        the Cabinet Secretary responsible for the entity, or the Chief
        Justice or the Speaker of the National Assembly if, in the
        accounting officer's opinion, a decision or policy or proposed


        in a way that is contrary to subsection (1).” The Act goes on to
        decision or policy of the entity may result in resources being used


        provide through section 68 (3) that “If the concerns referred to in
        subsection (2) (f) are not adequately addressed by the Cabinet
        Secretary or the Chief Justice or the Speaker of the National


        attention of Parliament.” Therefore the law does not contemplate the
        Assembly, the accounting officer shall bring those concerns to the


        accounting officer of the Judiciary reporting to the JSC on financial and
        procurement matters.
    12. Any allegation of impropriety by an accounting officer is provided for
        by the Public Finance and Management Act. Section 74 (2) (b)
        provides that if the Cabinet Secretary believes that the accounting
        officer has engaged in improper conduct in relation to resources of the
        entity he/she shall refer the matter to the relevant office or body in
        terms of the statutory and other conditions of appointment or
        employment applicable to that accounting officer. In other words the
        Cabinet Secretary of the National Treasury has to refer the matter such
        as this particular one to the JSC.



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    13. In suspected cases of procurement malpractices, section 102of the
          Public Procurement and Disposal Actempowers the Director-General
          of the Public Procurement Oversight Authority to order an
          investigation of procurement proceedings for the purpose of
          determining whether there has been a breach of law. It states that the
          investigation shall be conducted by an investigator appointed for the
          purpose by the Director-General and not by the JSC.
    14. From the foregoing it is clear that JSC is a service commission
          comparable to the Teachers Service Commission (TSC) and Public
          Service Commission (PSC) set up to primarily to recruit officers as per
          their mandate and do not exercise oversight over the finances or
          procurements of the relevant ministries/departments.
               Furthermore the JSC is a part-time Commission unlike the TSC
          and PSC and therefore cannot be expected to exercise oversight over
    15.


          procurement and finances of the Judiciary. Had the law envisaged such
          a situation, they would probably be fulltime. The distinction by the Law
          makers is rather obvious: TSC deals with over 240,000 teachers and
          PSC deals with over 230,000 public servants.

         Queries Raised by JSC

    16. The queries above-mentioned relate to Failure to exercise prudence


          Kshs 1.2 billion. I honestly have no idea what the loss of 1.2 billion
          in expenditure of public funds resulting into loss of approximately


          means in this context. Black’s Law dictionary defines loss as:
          diminution; reduction; decrease in value; that which cannot be



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          recovered. The JSC, even as it asked me the questions has not explained
          what, where and how exact loss of public funds occurred.


    17. I note that most of the queries are couched in language suggesting that
          the actions I have taken are irregular, unauthorized, and unjustified.
          However, with respect, I wish to differ on such insinuation or
          accusation, and confirm that any action taken by myself is in line with


          strategic Plan and annual budget all of which are costed and
          the law, the Judiciary Transformation Framework, the ICT


          approved by the JSC and Parliament.            I simply therefore have
          implemented a lawfully approved programme based budget. Indeed
          the Hon. Chief Justice is always on record reiterating that the Judiciary
          Transformation Framework is our North.



    18. The Judiciary is not on a spending spree. We are implementing Judiciary
          policies as anchored in the Judiciary Transformation Framework 2012-
          2016 (JTF), the State of Judiciary Report 2012 (both approved by the
          JSC) and announcements by the Hon. Chief Justice through official
          speeches as Head of the Judiciary(Management treats the Hon. Chief
          Justice’s speeches and statements as policy pronouncements). Access to
          justice is guaranteed in the Constitution under Article 48 as a right for
          all persons. The State is required to ensure the realization of this right,
          and to remove obstacles that impede access to justice. Such obstacles
          include distance to courts, shortage of judicial officers and inefficiencies
          of the court system.


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    19. Human Resources: Previously, the Judiciary was grossly understaffed
          and operated at 47 per cent of the established staff capacity. Since
          October 2011 52 superior court judges, 153 resident magistrates, 87
          accountants, 27 Human resource practitioners and 14 performance
          management officers amongst other administrative staff have been
          hired.


    20. The primary unit of the Judiciary is the judicial officer. Increase in the
          number of judicial officers automatically means a corresponding need
          of infrastructure (physical space, ICT devices) and human resources
          (court clerk, secretary, administrative officers etc.). Therefore the
          additional judicial officers created demand for corresponding increase
          of infrastructure and resources. That is why our budget has increased
          ten-fold in the last two years I have been in office.


    21. Infrastructure: In response to the constitutional and statutory dictates
          to the Judiciary to establish a presence in every county, new courts
          must be built. With the budgetary allocation from the Government in
          the current financial year, the Judiciary will construct a further three
          High Courts, raising the number to 23, with priority given to marginal
          areas. Subsequently under the World Bank funded Judiciary
          Performance Improvement Project (JPIP) 10 High Courts will be
          constructed over the next six years. Sufficient budgetary support from
          the Government in the next few years would go a long way in covering
          the deficit to enable every county to have a High Court. (prefabs and
          renovations of the courts)

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    22. ICT technology. Section 3 (l) of the Judicial Service Act of 2011 directs
          both the JSC and the Judiciary to employ modern technology in their
          operations. In this regard the Judiciary hired consultants to develop the
          Judiciary ICT Strategic Plan with costings to guide the design and
          implementation of technology in the Judiciary. There was wide
          stakeholder engagement including the JSC in development of the
          Strategic Plan. Furthermore the Judiciary has anchored ICT in the
          JudiciaryTransformation Framework by having it as a stand-alone pillar
          which illustrates on the importance of ICT on the provision of accessible
          and affordable justice thereby the initial huge capital outlay.It is
          important to note that the banking industry in the mid and late nineties
          invested heavily in technology and some even posted losses during that
          period. However, such investment forever changed the banking
          industry, from manual to digital. The Judiciary in serving the public
          need to invest in technology in order to reap the benefit of timely and
          affordable administration of justice.


         It is on the basis of the foregoing that the Judiciary budgeted, presented
         to the National Assembly and rolled out the ICT infrastructure. The
         building of infrastructure seeks to facilitate effective ICT service
         delivery. This will cover the Supreme Court, the decentralized Court of
         Appeal and High Court stations around the country, the Judiciary
         Training Institute, and the magistrates’ courts. This infrastructure will
         modernize the operations of the Judiciary and will ensure timely
         disposal of cases and in particular will better facilitate the provision of

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         email facilities and Internet connectivity, document transmission and
         sharing of data, voice communications, and clean power in the courts.
         Already the court stations are sending official reports and returns
         through email. The Judiciary successfully rolled out the Election Petition
         Case Management System that was key in managing the election
         petitions countrywide. A similar system is currently being piloted at the
         court of appeal and will soon be rolled out to all high Court stations. The
         Judiciary has automated its complaint system through the Judiciary
         Service Desk that keeps track of all queries, compliment s and
         comments that are handled by the Judiciary Ombudsperson.
    23. Summary: The Government allocates funds through a budgetary
          exercise that involves input of the JSC, Parliament and the National
          Treasury. The budget is based on the needs of the institution and is
          program based. Therefore the items acquired including ICT and
          premises were budgeted for and approved.          It is therefore highly
          erroneous to term as irregular the spending of budgeted monies. I have
          always paid fidelity to the law and abhor flagrant breach or disregard of
          any laid down procedure as provided for in legislation and in the
          Constitution. I have not knowingly and will not allow any illegality
          under my watch.

    Despite the foregoing analysis and legal position and without prejudice, I
    will proceed to answer your queries in the spirit of immediate
    transparency and collegiality, to which I am committed.




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    A. ALLEGATIONS OF FINANCIAL MISMANAGEMENT
      1. RAHIMTULLA PREMISES
    a) Security Deposits Equivalent to Six Months Rents, Service Charge
         and Parking Fees (Kshs48.7m)

    There is nothing irregular in paying security deposit. In fact it is standard
    practice in both the public and private sector. The payment of six-month
    deposit and six month rent is a condition of the lease. The deposits are
    recorded and maintained in a register of deposits for all leases. The
    deposit sum is recoverable upon expiry of the lease and therefore
    there is no loss.

    I have to point out that the landlord was hesitant to lease to the
    Government due to our track record of paying rent late and poor
    maintenance of premises.

    For the record, as the accounting officer, I am responsible under section
    68 of the Public Finance Management Act to ensure expenditure is
    effective, efficient, economical and transparent.

    The stated amount of Kshs 48.7 million paid out to Rahimtulla includes the
    following:

          • Rent July – September                       KSH11.6 million
          • Service Charge July- September –            KSH3.3 million
          • Security deposit (6 months)                 KSH32.4 million
          • Parking Fees                                KSH0.9 million


    b) Payment of Funds from the Milimani Deposits Account

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    Under Section 75 of the Public Finance Management Act, I am
    designated as a Collector of Revenue. I thereafter in accordance with
    Section 76 of the aforementioned Act nominated Mr. Wycliffe Wanga, the
    Director of Revenue Collection as the collector of revenue I have never
    issued him instructions to make any payments from the Deposits Accounts.
    (Annex Fin 1 - Memo appointing Wanga as Director Revenue Collection)

    However, from time to time in instances when there is no exchequer or the
    IFMIS system is down, urgent payments are done from the Deposits
    Account and the refunds undertaken as soon as the exchequer is issued and
    Judiciary has funds. This is normally reported to the Kenya National Audit
    Office and will be answered as an audit query; which is that the monies
    have been refunded and that there were justifiable reasons for the action.
    This report has already been made. It is common knowledge and practice
    in the public service that there exists challenges of late exchequer and
    incessant service providers demanding payments.

    Occasion has arisen where we have negotiated with Treasury surrender of
    revenue in exchange for exchequer release to the Judiciary. (Annex Fin2
    Attached letter to Treasury)

    c) Alleged Delegation of Accounting Officer Duties to Nicholas
         Okemwa.

     I have not in any way whatsoever delegated accounting duties to persons
    within my office. Whenever I am away I delegate accounting powers to the
    Deputy Chief Registrar of the Judiciary, Mr. Kakai Kissinger in accordance
    with section 11 of the Judicial Service Act.


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    The misunderstanding may have arisen due to the restructuring of the
    office of the Chief Registrar of the Judiciary. Previously the Office of the
    Registrar of the High Court only had a secretary. With the expanded
    mandate of the Chief Registrar, it would be impracticable to expect as
    rightly recognized by the JSC, the incumbent to deal with each and every
    issue that comes to the office. The Office is now staffed with competent
    officers who liaise with other offices within the Judiciary to ensure the
    Chief Registrar meets the targets of the service level agreement.

    d) Alleged Irregular Purchase of Second Hand Furniture and Fittings
         without Approval of Commission and Without Due Diligence.

    As previously stated, the JSC and the Judiciary are distinct and separate
    entities. The JSC does not have oversight over procurements by the
    Judiciary and therefore the approval of the Commission on Judiciary
    procurement decisions is not required under the relevant legislation. As
    the accounting officer, I am not involved in actual procurement
    decisions. I do not sit in the tender committee and my role is limited to
    establishing the tender and procurement committees of the judiciary as
    stipulated in regulation 7(a) of the Public Procurement and Disposal
    Regulations 2006.

    The report from the Director of Supply Chain Management states that there
    was no irregularity and due diligence was observed in the acquisition of
    the furniture and fittings as follows: (Annex 1 SCMS Report from DSCMS)

    The Judiciary’s Tender Committee awarded the tender of lease of office
    premises to Rahimtulla Trust (Rahimtulla Towers.). During one of the
    inspection visits to Rahimtulla Towers, the occupants at that time, Price
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    Waterhouse Coopers (PWC) had not yet vacated the premises and the
    Judiciary was made aware that PWC could sell the office fit outs as they
    existed.

    The other option was to demolish the entire structure and leave an open
    space (core and shell) for the next tenant. The Judiciary’s management
    decided to pursue the option of acquiring the office fit outs as there would
    be enormous savings in terms of cost and the time required to tender and
    fit new structures. The process of direct procurement was thus
    commenced in accordance with Section 29 (3) and Section 74 (2) of the
    Public Procurement and Disposal Act 2006 (PPDA). (Annex SCMS 2)

    Section 29(2) of PPDA provides that a procuring entity may use an
    alternative procurement procedure only if that procedure is allowed under
    Part VI. Section 29(3) further provides that a procuring entity may use
    restricted tendering or direct procurement as an alternative procurement
    procedure only if, before using the procedure, the procuring entity — (a)
    obtains the written approval of its tender committee (b) records in writing
    the reasons for using the alternative procurement procedure. The
    procurement process started with the Tender Committee first approving
    the procedure and commencement of negotiations after determining that
    the relevant condition set out in section 74(2) of the Public Procurement
    and Disposal Act, 2005 had been satisfied. Regulation 10(2) (l) of Public
    Procurement and Disposal Regulations (PPDR) (Annex SCMS3)mandates
    the tender committee to approve negotiations (Annex SCMS 4 JTC Minutes)

    Section 74 (2) of PPDA provides that a procuring entity may use direct
    procurement if the following are satisfied (a) there is only one person who

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    can supply the goods, works or services; and (b) there is no reasonable
    alternative or substitute for the goods, works or services. The fit outs
    belonged to PWC and they were the only people who could supply them.
    There was no reasonable alternative or substitute as the only other
    alternative which was considered unreasonable was for PWC to demolish
    all the structures and the Judiciary goes through the process of design,
    tendering and construction which would have taken 8-12 months while at
    the same time paying rent for an unoccupied building as was the case with


    By making a decision to buy the fit outs, the rent paid would not go to
    the Partitioning works for the JSC Mayfair Offices which took 2 years.


    waste as the building would be occupied immediately.

    In accordance with Regulation 8(3) (i) of PPDR, the procurement unit
    recommended a negotiating team for appointment by the accounting
    officer. The negotiating team held a meeting with PWC and the outcome of
    the meeting resulted in a further discount for the assets that were to be
    purchased by the Judiciary from the initial valuation report for the
    furniture and fittings of Kshs 32,550,000 to Kshs 30,000,000 plus taxes,
    where applicable. During the negotiations PWC insisted that the
    workstations were part of the office fit-out as they were interconnected
    and had provisions for ICT structured cabling, therefore dismantling the
    work stations would result in losses for the seller (PWC.) They were also
    adamant that they would only sell the fit-outs if The Judiciary was ready to
    purchase the rest of the furniture since the furniture was meant to be used
    as a unit. (Annex SCMS 5 negotiations minutes)




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    To ensure value for money, The Judiciary engaged Jomo Kenyatta
    University of Agriculture and Technology (JKUAT), a public institution to
    carry out valuation of the office fit out, furniture and fittings. Additionally,
    the Directorate of Supply Chain Management carried out a market survey
    to establish the cost of new office fit outs as well as new furniture. (Annex
    SCMS 6 BQs from JKUAT and the market survey for furniture).

    The Judiciary made savings of Kshs 70,000,000/- by acting prudently
    and with all due diligence in making the award decision.

    e) Lease of Rahimtulla without Authorization of Commission

    Approval of the Commission is not required to lease premises for the
    Judiciary as the two are separate and distinct entities. Under the terms of
    my appointment letter as the Accounting Officer, I am solely authorized to
    enter into contracts on behalf of Judiciary provided the same has gone
    through due process. However, the JSC was aware of the intended lease
    from my presentation to them on 15th of January 2013 and furthermore the
    procurement was through open tender that was advertised through the
    local dailies.

    f) Allegedly Leased Premises when they were not needed

Once a policy decision to hire additional staff including judges has been made
by the JSC, it means that the cost of the wages and resultant resources have to
be budgeted for. For instance the medical insurance premium has to be
increased, additional office space has to be obtained, and computers have to
be purchased. Additionally if more judges are hired it means extra vehicles,



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extra fuel expenses, additional secretaries, additional administrative staff and
so on.

The premises in question were/are urgently needed since the Supreme Court
building is required to undergo structural repairs and to alleviate the
overcrowding in the premises, which run counter to the provisions of the
Public Health Act. It is important to note that the Supreme Court building
was built in 1930 and has subsequently been declared a national monument
vide Gazette Notice no 2079 of 1996.(Annex SCMS 7). It is therefore a
building that has to be preserved and maintained in accordance to standards
set by the National Museums Act (formerly The Antiquities and National
Monuments Act). You will note that the building has cracks and part of it may
collapse at any one time. Indeed the Hon. Chief Justice in his recent
communication to the Court of Appeal judges confirmed that there were
dangerous cracks and defects in the building that necessitated their
movement to Elgon Place in Upperhill(Annex SCMS 8 CJ Email authorizing
movement to Rahimtulla)

It is important to note that the old Court of Appeal building in Mombasa did
not undergo structural repairs in time and is now in dire straits. It has since
been completely taken over by the National Museums of Kenya. The adage a
stitch in time saves nine. (Annex SCMS 9–Mombasa Court Report)

Rahimtulla premises will be occupied by the following:

         • Directorate Supply Chain Management- 27 people
         • Finance and Accounts Directorate - 35 people
         • Internal Audit - 7 people


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         • Kenya National Audit Staff – 6 people
         • Human Resource and Administration Directorate – 38 people
         • Directorate of Performance Management
         • Directorate of Revenue Collection
         • UNDP – Project Management Unit - 7 People
         • Project Management Unit (JPIP)- 20 people
         • Independent Fiduciary Agent (JPIP)- 14 people
         • KMJA Secretariat
         • KWJA Secretariat
         • NCAJ Secretariat
         • Political Parties Tribunal -12 people
         • Auctioneers Licencing Board
         • Tribunals -The Judiciary is in the process of taking over all tribunals
               (approximately 17) as required under the Constitution. Some will be
               housed in Rahimtulla.


    g) Allegation that the Lease for Rahimtulla was not Registered.

    The registration of the lease is ongoing as the executed documents are with
    the landlords advocate for lodging at the Lands Office in accordance with
    conveyance practice.

    h) Allegation that there was no Market Valuation for Rahimtulla?

    The Directorate of Supply Chain Management carried out a market survey
    to determine the average rental charge of office premises around Upper
    Hill area in accordance with Regulation 8 (3) (z) of PPDR 2006. The market
    survey established that the rent payable per square feet was within the
22 | P a g e                                FINAL REPORT GBS/JSC 15    T H   OCT 2013
    market range and this informed the Tender Committee’s Decision to award
    the Contract for leasing of office premises to Rahimtulla Trust. The cost per
    square feet was Kshs 100 (Annex SCMS 10 Market Survey for Rahimtulla
    Trust) Furthermore the Judiciary leased the premises at the exact same
    costs as the previous tenants PriceWaterhouseCoopers and was sourced
    through open tender.

     It should be noted that JSC Mayfair premises was sourced two years ago
    and cost Kshs 124 per square foot. Due diligence of the latter was
    undertaken by Commissioner AhmednasirAbdulahi and Commissioner
    Emily Ominde(Annex SCMS 11- JSC Minutes)



      2. VOMORONO (LIBRA HOUSE) WAREHOUSE
    a) Alleged Lease Agreement without Authorization of Commission

    As stated before the approval of the Commission is not required to lease
    premises for the Judiciary it falls within the mandate of the accounting
    officer. However the premises were acquired through open tender and was
    advertised in the local dailies as the PPDA (Annex SCMS 12 Advert Lease of
    office Space).

    b) Validity of Title

   The title is valid. The JSC erroneously relied on the cancelled version of the
   lease instead of the final corrected version. The cancellation in the title was
   done by the lands office on the basis of misspelling of the lessor’s name. The
   document relied by the JSC was deliberately edited to conceal the
   correction for purposes of either trying to build a case against me or other

23 | P a g e                             FINAL REPORT GBS/JSC 15      T H   OCT 2013
   reasons best known to JSC. Find attached the registered lease. (Annex SCMS
   13Lease for Vomorono Warehouse)

    c) Allegation that there was no Market Valuation for Vomorono
         Warehouse.

    The Directorate of Supply Chain Management carried out a market survey
    to determine the average rental charge of office premises around Industrial
    Area / Mombasa Road       in accordance with Regulation 8 (3) (z) of PPDR
    2006. The market survey established that the rent payable per square feet
    was within the market range and this informed the Tender Committee’s
    Decision to award the Contract for leasing of a warehouse to M/s
    Vomorono Ltd. (Annex SCMS 14Market Survey for Vomorono Warehouse)

    Furthermore, the premises were acquired through open tender and was
    advertised in the local dailies as per the PPDA.

    d) Allegation that there is no need for Vomorono Warehouse



    Nairobi but in regions across the country. The Records Disposal
    There is an urgent need to have warehouse premises not only in


    ActCap 14 provides a schedule for records retention and disposal
    including procedures for disposal. The Records Disposal (Courts) Rules
    provides that the records relating to family matters such as administration
    of estate and right to heirship should not be destroyed. The general rule is
    that the records, books and papers relating to civil court proceedings can
    only be destroyed after 12 years from the date of final judgment or order.
    On the other hand, financial records are also to be stored for a minimum of
    7 years.

24 | P a g e                             FINAL REPORT GBS/JSC 15    T H   OCT 2013
    The current storage of court and financial records is below acceptable
    minimal standards to ease retrieval for audits or reconstruction of records.
    The records are being stored in basements, corridors and other unsuitable
    places that not only congest the courtrooms but expose the records to
    undesirable elements of nature, including snakes, hedgehogs, rats and
    termites.

    The Auditor General has on occasion given a disclaimer of opinion on the
    Judiciary Audit as they have been unable to obtain all financial records
    necessary to make an opinion. This is usually due to the inability to retrieve
    Payment Vouchers or contract documents for verification by the auditors
    on time. Proper storage, recording and cataloguing in a well designed
    warehouse will resolve this audit issue as the Judiciary works towards
    obtaining an unqualified audit opinion.

    e. Allegation that Vomorono Lease is not registered

    The lease was registered. Find attached the registered lease. The title
    document that JSC relied on was deliberately edited to remove the entry of
    the lease registration.(AnnexSCMS15)

      3. ELGON PLACE
    a) Allegation that lease was entered without valuation

    The Directorate of Supply Chain Management carried out a market survey
    to determine the average rental charge of office premises around Upper
    Hill area in accordance with Regulation 8 (3) (z) of PPDR 2006. The
    market survey established that the rent payable per square foot was within
    the market range and this informed the Tender Committee’s Decision to

25 | P a g e                             FINAL REPORT GBS/JSC 15      T H   OCT 2013
    award the Contract for leasing of court premises to Knight Frank Ltd.
    (Annex SCMS 16Market survey for Rahimtulla Trust and Elgon Place).

    Furthermore the premises were acquired through an open tender process
    which was advertised in the local dailies. (Ditto Annex SCMS 12)



    b) Alleged Irregularities and Inconsistencies of Lease Document


               JSC is relying on outdated draft documents. Both the head of
    (i)        That documents are not properly dated


               terms and the lease agreement are dated. Find attached the actual
               documents (Annex SCMS 17)


               The lease has been executed by the accounting officer as per the
    (ii)       That they are not under the seal of the Judiciary


               law.


               The lease agreement has been witnessed by qualified advocates.
    (iii)      That the documents are not properly witnessed




               There is a difference between executing documents, witnessing
    (iv)       That the signatures are witnessed by unqualified persons


               documents, certifying documents and preparation of documents.
               Any person of age who is of sound mind can witness a document
               or in other words attest that a party in question truly appended
               their signature. In relation to the Head of Terms attested by the
               legal counsel in my office, it does not fall foul of the provisions of
               the Advocates Act particularly section 34. The duly executed
               lease agreement was witnessed by duly qualified counsel.
    (v)        That there were different lease terms and conditions

26 | P a g e                               FINAL REPORT GBS/JSC 15       T H   OCT 2013
               The JSC appears to be erroneously relying on incomplete drafts of
               the lease document. Elgon Place has only one lease that was
               executed for a term of 10 years. The initial heads of terms which
               had a proposed lease term of 6 years was a guide to the final lease
               for Elgon Place. The final lease of 10 years was entered into
               accordance with the tender document which required the bidder
               to provide competitive terms of lease. Originally it was intended
               to be a term of six years. However, the delay in acquiring the land
               to construct the Court of Appeal and the Administration block
               meant the Judiciary had lost two years out of the six years. In
               addition, since the Judiciary intended to partition the entire
               building and therefore to maximize the use of the partitions with
               an emphasis on value for money. Given the foregoing, the
               Judiciary resolved to make an award for a 10 year lease for Elgon
               Place. This is due to the fact that the lease was not automatically
               renewable and upon expiration of the lease, the Judiciary would
               not be in a position to salvage the fit outs which if possible could
               have been used elsewhere. (Annex SCMS 18Negotiation minutes
               and minutes of the Tender Committee resolving to award lease of
               Office Premises to M/s Knight Frank)


               At the time of receiving the allegations, the process of registration
    (vi)       That the Lease was not registered.


               was ongoing. Find attached the registration


    c) Allegation that Payment was made in Foreign Currency



27 | P a g e                               FINAL REPORT GBS/JSC 15      T H   OCT 2013
    There is nothing irregular about making payments in foreign currency
    equivalent. Standard public bid documents allow bidders to request for
    payments in foreign currency. For commercial lease agreements within the
    CBD and environs, it is common for the rent to be quoted in USD. The
    current selling exchange rate from the Central Bank of Kenya (CBK) is used
    to calculate actual amounts payable. Quotations for computers, phones,
    airplane tickets and per-diems are in US$ but payment is done in local
    currency equivalent.

    The difference of 1,183,093/50 was occasioned from the difference
    between the KCB rate and the CBK rates. Nevertheless this difference has
    been treated as part of the deposit and is reflected in the register of
    deposits for all leases.

    It is important to note that Section 69 of the Public Finance Management
    Act provides for the Accounting Officer of a National Government entity to
    writeoff a loss that may have occurred.

    d) Allegation of irregular Payment of security deposits

    There is no prohibition in the law for paying security deposits; in fact it is
    standard practice. The deposits paid were negotiated and are consistent
    with the terms of the lease agreement with the landlord. Such payments
    are reflected in the deposits account and in a register of deposits for all
    leases. As stated earlier, security deposits are recoverable after expiry of
    the lease.




28 | P a g e                             FINAL REPORT GBS/JSC 15      T H   OCT 2013
    e) Allegation of irregular payment of service charge of Kshs 3.3
         million even when Judiciary was sole tenant and landlord not
         providing services.

    The payments made were consistent with the terms of the lease agreement
    and therefore there was no irregularity. For clarity no rent was paid for the
    period January – March 2013. The service charge payable by the Judiciary
    includes but not limited to charges for the insurance of the premises,
    electricity and water for common parts, external security, sewerage,
    cleaning of common parts, ground rent, rates, non-capital repairs,
    maintenance of lifts, water pumps, and maintenance of vehicle parking and
    delivery areas and management costs charged to the Landlord in respect of
    common parts of the premises used by the tenant.

    In the real estate industry for the lease of office premises, the service
    charge is payable based on the square feet occupied by a tenant. The
    premises were identified through an open tendering process which
    required the bidders to quote for service charge as it was not anticipated
    that the Judiciary would be the sole tenant of premises to be identified. The
    terms of the tender document formed the basis upon which the lease was
    negotiated and prepared. If the Judiciary knew in advance that it would be
    the sole tenant, we would have opted to manage the building instead of
    paying the service charge.

    In any case we do not have expertise in estate management as evidenced in
    the dilapidated court buildings across country caused by years of neglect.
    However, under the World Bank Judiciary Performance Improvement



29 | P a g e                            FINAL REPORT GBS/JSC 15      T H   OCT 2013
    Project (JPIP) a Facilities Management Unit will be established which will
    take over the role of managing premises within the next year or two.

    f) Allegation of Double Payment of Rent.

    This question is picked from the audit queries raised by the internal
    auditor and has been resolved and is no longer pending as an audit query.
    However the explanation is as follows: The initial payments of
    KES43,250,082.10 was made from JTI due to Exchequer delay at
    headquarters that forced management to request JTI to pay then be
    subsequently reimbursed. JTI paid but the accountants at headquarters
    had already processed and lodged all necessary documentation at IFMIS.
    The double-payment was immediately detected and amount was off-set
    against future certificates for the partitioning/fit-outs.

    g) Allegation: That Unauthorised Rents for January-June of Kshs 169,
         051,914 were paid contrary to terms of lease agreement and in
         excess of agreed rent

    It is not clear where the JSC obtained this figure of rent amounting to Kshs
    169 million. In fact our rent for the period is Kshs34,486,381.75

    According to our records, the following was paid out for the period in
    question:.


         a). Total Service Charge:     KES   9,999,432.00

         c). Total Deposits            KES 19,115,113.65
         b). Total Rent:               KES 34,486,381.75

         d). Fit-outs                  KES 131,546,592.50




30 | P a g e                              FINAL REPORT GBS/JSC 15   T H   OCT 2013
The total amount of KES 195,147,519.90 has been paid as analyzed in the
annexed excel sheet (Annex Fin SealinkReconciliation)



    h) Alleged    Advance     Interim    Payments     thereby     Pre-financing
         Contractor

    Advance payment to a contractor is standard practice in the construction
    industry as it enables contractors to mobilize on the ground. The Condition
    to pay advance payment is borrowed directly from the Public Procurement
    Oversight Authority’s standard bid document for building & associated civil
    works clause 23.7 which we are required by law to use and is widely used
    in public sector projects including the Ministry of Public Works (MOPW)
    who have similar conditions in their Bills of Quantities. There is no law out
    outlawing advance payment and it can therefore not be illegal.

    The advance is recovered progressively as per formula in the PPOA
    standard bid document Clause 23.7 The advance payment is however paid
    against a Bank Guarantee of a similar amount thus reducing the risk of
    losing the money to zero. The partitioning works have since been
    completed and the Judiciary has not incurred any loss. (Annex SCMS
    19Extract from the Standard Bidding documents for advance payments)

      4. Allegations Relating to Lease of Premises for Court Houses.

      As mentioned in the introduction, the principle of access to justice as
      anchored in the Constitution and the Judicial Service Act behooves the
      Judiciary to invest in brick and mortar. Indeed I made a presentation
      before the Budget and Appropriations Committee of the national

31 | P a g e                            FINAL REPORT GBS/JSC 15      T H   OCT 2013
      Assembly in May, 2013           where I included the proposed leasing of
      buildings from Agricultural Finance Corporation (AFC). (AnnexSCMS20 -
      Listof premises leased from AFC)




Based on the presentation, the Judiciary was granted budgetary allocations to
lease the premises. This clearly spearheads the JTF in acquisition of adequate
infrastructure for the Judiciary and is the biggest promotion of access to
justice in the history of the Judiciary.

    i.         That there were no Valuations

    Most of the leases for court houses outside Nairobi were contracted with
    Agricultural Finance Corporation (AFC), a public institution. I draw your
    attention once again to section 4 (2) (c) of thePPDA2005 which states
    that the acquiring of services provided by the Government or a department
    of the government is not procurement. Therefore, market surveys in
    regards to the rental prices do not apply in such circumstances. However,
    as is the practice and in a bid to act prudently, the Judiciary carried out a
    market survey of the rental prices in the various towns where it had leased
    court houses. (Annex SCMS 21- Market Survey for AFC leases)

    ii.        That No title deeds availed to Judiciary

    Titles are issued where a party has purchased the property. The Judiciary
    is leasing the premises; no landlord in this jurisdiction will give the title
    deed to the lessee.


32 | P a g e                               FINAL REPORT GBS/JSC 15   T H   OCT 2013
    iii.       That Leases not Registered

    The leases are currently in the process of registration. The duly executed
    documents are with the landlord’s advocates as per conveyance practice
    for lodging at the lands office.

    iv.        That there was irregular Payment of administrative costs and
               legal fees made to landlord

    The Advocates Act provides for such payments to be made to the lessor’s
    advocates for registration of the lease and resultant expenses.



      5. PRE-FINANCING          OF     INFORMATION       &   COMMUNICATION
           TECHNOLOGY PROVIDERS (ICT) PROVIDERS.
    (i)          Lekha Trading Company

    The procurement for the supply and installation of EPABX cabling at the
    Supreme Court building underwent a competitive process. The award was
    finalized at the tail end of the financial year. The delay was due to the
    restructuring of the Procurement Directorate which led to the interdiction
    of the then Chief Procurement Officer and thereafter necessitated the
    secondment of officers from the Directorate of Procurement, National
    Treasury. Upon coming on board, the new team started off the
    procurement process which was finalized at the tail end of the financial
    year. Therefore to avoid remitting back the funds to Treasury, Lekha
    Trading Company which had won the tender was paid the full amount
    against a valid bank guarantee of a similar amount. There was therefore no
    exposure to risk to the Judiciary. (Annex SCMS 22Bank guarantee)

33 | P a g e                                 FINAL REPORT GBS/JSC 15   T H   OCT 2013
    (ii)        Alleged Questionable Bank Guarantee

    To the best of our knowledge the bank guarantee is valid.(Annex SCMS 23 –
    letter to the bank)

    (iii)       Alleged that works are not completed

    Certain aspects of the works have not been completed to the satisfaction of
    the ICT Directorate hence the reason theJudiciaryhas not released the bank
    guarantee. (Annex SCMS 24Report of ICT Director).

    (iv)        Alleged Breach of law by advance payments of 30% to ICT
                Providers

    It is standard practice to pay a certain amount to a consultant/contractor
    upon signing of a contract. All payment were paid as per terms of the
    contract.

      6. ALLEGED IRREGULAR PAYMENT TO SECURITY CONSULTANT
           SIMIYU WERUNGA

      There was no irregular payment. This payment was made in relation to
      issue of security concerns of Judges and court premises, inter alia, relating
      to the election period as discussed by the Assumption into Office of the
      President Committee as provided for by the relevant Act. In accordance
      with the laws concerning such security issues, other officers and I signed a
      confidentiality agreement and would need a waiver from Office of the
      President to give details as it was a national security issue.

      7. PREFABRICATED COURT HOUSES.



34 | P a g e                               FINAL REPORT GBS/JSC 15     T H   OCT 2013
    a) Alleged Irregular Advance Interim Payment for prefabs for Bomet,
         Marimanti, Othaya and Wang’uru Courts

    There was no irregularity. Advance payment to a contractor is standard
    practice in the construction industry as it enables contractors to mobilize.
    The Condition to pay advance payment is borrowed directly from the


    building & associated civil works clause 23.7 which we are required by
    Public Procurement Oversight Authority’s standard bid document for


    law to use and is widely used in public sector projects including the
    Ministry for Public Works (MOPW) who have similar conditions in their
    Bills of Quantities. There is no law prohibiting advance payment.

    The construction of prefabs takes a different approach, since all or at least
    90% of the structure is fabricated away from site in the contractor's
    workshop, the advance affirms the client's commitment to the contract.
    The prefabricated materials therefore belong to Judiciary but are only
    stored in the bonded warehouse which is insured.

    The advance payment is however paid against a Bank Guarantee of a
    similar amount thus reducing the risk of losing the money to zero. The
    advance is recovered progressively as per formula in the PPOA standard
    bid document Clause 23.7. (Ditto Annex SCMS 19)

    (ii)       Alleged Payments to undisclosed payee

    There is no such thing as an undisclosed payee as IFMIS requires the
    beneficiary to be defined in the system and have a bank account.




35 | P a g e                            FINAL REPORT GBS/JSC 15      T H   OCT 2013
    Payments concerning prefabs were only paid to Economic Housing Group
    (EHG) or JKUAT. The annexure provided by JSC had the name of the payee
    deliberately edited out.

    (iii)      Irregular Payment done through JTI instead of Head Quarters

    There is no irregularity. Payments are often made upon approval via JTI or
    Milimani whenever there is exchequer delay. This challenge is not peculiar
    to Government institutions and it is common practice that borrowing from
    other sources within the same institution can be done. The amounts are
    then refunded by headquarters and posted via IFMIS. The full payment
    details of the transaction are captured into IFMIS at point of refund.

    b) Irregular payment to JKUAT for prefabricated courts

    There is no irregularity. The Judiciary engaged Jomo Kenyatta University of
    Agriculture and Technology (JKUAT) a public institution as Consultants to
    design and supervise construction of the prefabricated court buildings in
    accordance with the provisions of Sec. (4) (2) (c) of thePPDAwhich states
    that the acquiring of services provided by the Government or a department
    of the Government is not procurement with respect to which the Act
    applies. Contracts were signed with JKUAT and payment conditions were
    as per the provisions of the Architects and Quantity Surveyors Act CAP
    525 which provide for payment of up to 75% for completion of a detailed
    design incorporating the design work done by consultants and for
    preparing production drawings and information necessary for Bills of
    Quantities. The payments were made after the construction tender process
    had been completed which was beyond what the Act stipulates. Interim
    payment certificates are normally used while paying contractors and
36 | P a g e                             FINAL REPORT GBS/JSC 15      T H   OCT 2013
    not consultants. In the architectural and quantity surveying industry,
    interim payment arrangements are allowed between the architects and the
    client. In this particular case, JKUAT designed the prefabs and therefore the
    interim payments that were being made were in regard to the designs.
    However, there is no provision for the submission of interim certificates by
    the architects before making payments. The interim certificates are
    submitted in relation to the actual works done by the contractor. (Annex
    SCMS 25Architects and Quantity Surveyors Act)

      8. IRREGULAR MEDICAL EXPENDITURE ON BENEDICT OMOLLO

    There is no irregular expenditure. The KES39,284.80 was a refund to
    Benedict Omollo’s former employer, being the medical cover extended for
    the period July to September 2012.

    The Judiciary had problems with Alexander Forbeswho were then the
    medical service provider, and at the time no new staff were being added
    into the scheme. The Judiciary was in the process of identifying a new
    service provider for the medical scheme. Several other staff had the same
    benefit of carrying forward their existing medical scheme until a new
    service provider was in place. (Annex Fin 4Letters requesting Medical cover
    services)

      9. IRREGULAR SALARY ADVANCE

    The issuance of salary advances are not irregular but provided for in
    Government regulations and JSSR regulations. Salary advances are paid out
    to staff based on a request. Attached is a list of staff who have requested for
    salary advances. (Annex Fin 5– list of staff with advances).

37 | P a g e                             FINAL REPORT GBS/JSC 15       T H   OCT 2013
               The statement that I caused payment of a salary advance of 8
    (i)        Eight month salary advance totaling to 3,539,250


               months between 31st October 2012 and 21st November 2012 is
               untrue and incorrect.
               I wish to clarify that I indeed applied and received a 3 month
               salary advance on 20th December 2011 and completed repaying
               the same in November 2012. Later I applied for and received a
               second salary advance of 2.3 million. I have since repaid 680,000
               and have a current balance of 1.6 million. Several Supreme Court
               and Court of Appeal judges have had salary advances processed in
               a similar manner and continue to pay for them in the same way.


               It is important to note that I am an ordinary Kenyan of average
               means. The salary advance was to enable me to raise the requisite
               deposit for the Judiciary Mortgage Scheme just like other Judiciary
               staff. The salary advance is not irregularly acquired money.




               Already answered above. Attached find documentation evidencing
    (ii)       Failure to repay salary advance


               payment. (Annex Fin 6 – Receipt)


    (iii)      Salary advance irregularly effected from Judiciary Fund


               This is not irregular at all. Owing to the delays in Treasury to
               instead of Consolidated Fund


               process salary advances and leave commutations for judges, the
               Judiciary normally pays out salaries advances, commuted leave

38 | P a g e                              FINAL REPORT GBS/JSC 15     T H   OCT 2013
               through the Judiciary Fund due to the urgency of the requests. The
               officers then reimburse the Judiciary monies owedas soon as
               Treasury effects the payments to their respective accounts.
               Attached is a list of salary advances paid out to the judges through
               the Judiciary Fund (Annex Fin 7-list of Judges with advances paid
               from the consolidated fund).


      10.      ALLEGED IRREGULAR EARNING OF SITTING ALLOWANCES AT
          THE JSC

    I have not earned any irregular sitting allowances. Claims for allowances
    are generated by the Registrar of the JSC (Annex Fin 8 – sample pay
    requests) who tabulates the number of meetings attended by individual
    Commissioners and the Secretary. Members of the JSC who are present sign
    the attendance register then the JSC registrar Mrs. Mokaya crosses out the
    names of those who are absent and requests payment for only those who
    have signed. Accordingly, I have been paid for the meetings I signed for
    according to the JSC Registrar Mrs. Mokaya records and my knowledge. I
    wish to repeat I do not generate payments requests.

    On learning of this allegation I have severally requested the Registrar JSC to
    provide me with minutes so as to ascertain any truthfulness of this
    allegation. This information has not, to date, been provided to me.
    (AnnexFin9)

    As Secretary to the JSC, my role consists of but is not limited to signing
    notices    for   meeting,    listing   and   preparingagendas,    ascertaining
    documentation to be presented at meetings, supervise the taking of

39 | P a g e                               FINAL REPORT GBS/JSC 15     T H   OCT 2013
    minutes and implementing resolutions of the JSC. In instances where the
    JSC is conducting interviews from time to time I am summoned to
    present/discuss an agenda item or any matters arising.

    At this juncture it is important to note that the issue of allowances has been
    a thorny issue in the JSC creating negative undercurrents between myself
    and some Commissioners.

      11.         ALLEGED IRREGULAR MERGER OF FINANCE AND ACCOUNTS


                  There was no irregular merger of portfolios. Consultants were
          PORTFOLIOS


          hired to help the Judiciary streamline its financial management
      12.


          processes to incorporate changes in the law brought about by the
          enactment of the Public Finance management Act, need to embrace
          best practices and identify capacity gaps of the existing staff in the
          finance and accounts department. This culminated by a report and
          presentation to the JSC Finance and Administration Subcommittee by
          the Director of Finance. The restructure of the Directorates was
          confirmed by the JSC Commission. They adopted the structure as
          presented by the Director of Finance. (Annex Fin 10 Finance Directorate
          Restructuring Report




    (a)        Alleged Irregular and opening accounts.
    12.IRREGULAR BANK ACCOUNTS.


               There was no irregular opening of bank accounts by myself. With the
               provision of the Judiciary Fund under Article 173 of the Constitution,
               the judiciary was able to exercise some fiscal independence. In order


40 | P a g e                                 FINAL REPORT GBS/JSC 15     T H   OCT 2013
               to delink from the District Treasury and to better account and track
               finances at the Court Stations, we requested court stations to open
               separate bank accounts for Deposits (bails), Revenue (Fees and
               Fines) and Expenditure (AIE). The Judiciary notified the National
               Treasury of the new accounts (Annex Fin 11 – Letter informing
               treasury of opened bank accounts).
    (b)        Opening accounts at KCB without Treasury led to loss of
               Kshs30,500 and 1,183,093.50


               Under Section 28 of the JSC Act, the Judiciary can open and maintain
               bank accounts. (See Section24 of the PFM Act on Parliamentary Fund,
               specifically sub-section 12 as Judiciary Fund is established by the
               Constitution in Article 173)
               Bank accounts in KCB were opened in 2011, for Milimani Law Courts
               and JTI. KCB does not charge standard bank charges in the Judiciary
               Accounts except for bank transfers. The amount of Kshs 30,500/- is
               accumulated bank transfer charges and is carried in the bank
               reconciliation. However, this can be expensed as a voucher on a
               monthly basis once stations get AIE code for bank charges.


               The amount of Kshs 1,183,093.50 arose as a result of exchange
               difference between CBK quoted USD and the spot rate used to pay
               the landlord. It is recognized that CBK rates are indicative rather
               than transactional. There is therefore no loss incurred.




41 | P a g e                                  FINAL REPORT GBS/JSC 15     T H   OCT 2013
               In discussions with the office of the Accountant General, we were
               advised that the Judiciary is a co-equal arm of government. For local
               bank accounts, there exists a list of recommended banks. The
               Accounting Officer can open accounts and Treasury updated of the
               same. A statement of all bank accounts was submitted to the
               Treasury.


               However, Treasury approval and concurrence is needed for accounts
               opened for donors / partner funds. This has been complied with as a
               Financing Agreement is signed first as the basis for the account
               opening.


    (c)        Failure to issue guidelines/procedures on monies disbursed to


               This question is not clear. The Public Financial Management Act and
               JTI


               regulations thereunder provide guidance on how public finances are
               to be managed. Each court station including JTI receives their A.I.E.
               certificate which clarifies the amount and usage of money.


               The Director JTI should have requisite knowledge of Public Financial
               Management Act and regulations since he is responsible for JTI
               funds. Indeed the predecessor to the incumbent director of JTI did
               undertake a handover process that included briefings, a handover
               report and copy of the Public Financial Management Act.
               I am not aware that the Director of JTI lacks requisite knowledge of
               financial procedures and or management as provided for the Public

42 | P a g e                                 FINAL REPORT GBS/JSC 15        T H   OCT 2013
               Finance Management Act. However, it would be fair to expect that
               any officers who are not familiar with the Public Finance
               Management Act to consult the Directorate of Finance on the same.


               Notwithstanding the foregoingthe Directorate of Finance recognizes
               that since the Judiciary is expanding, it will develop domesticated
               financial manual. Under the JPIP work plan for 2012/13 the
               directorate of Finance has requested for a consultant to help develop
               a Financial Manual that contextualizes the Public Finance
               Management Act 2012 and the unique transactions of the Judiciary.


    (d)        Large payments being made through JTI and Milimani KCB
               accounts bypassing IFMIS.


               There is nothing irregular from paying from our own accounts
               provided it is an approved activity. Payments, large or small, are
               made upon approval via JTI or Milimani whenever there is exchequer
               delay. The amounts are refunded by headquarters and posted via
               IFMIS.
               The full transactional details are captured into IFMIS at point of
               refund. It is also important to note that due process of approval and
               financial controls are still incorporated in payments made on behalf
               of Head Quarters by JTI or Milimani.


    (e)        Unauthorised expenditure of 67,000,000 for judicial marches.



43 | P a g e                                 FINAL REPORT GBS/JSC 15    T H   OCT 2013
               The Judicial Marches wasthe brainchild of the Hon. Chief Justice and
               were organized by a committee comprising of Hon. Mr. Justice
               KiharaKariuki, Chief of Staff Duncan Okello, Hon. Prof. Joel Ngugi and
               KwamchetsiMakhoka. (Annex Fin 12)

               JTI, as the coordinator of the Judicial marches, received an advance
               Kshs 67,000,000 from HQ for the above activities. This amount was
               disbursed to each court station and activities were undertaken. Each
               station has reconciled back with JTI. The balance of Kshs
               1,249,000.00 is yet to be surrendered to headquarters from
               JTI.(Annex Fin 13 Internal Audit report finding and closure / surrender
               letter from JTI)



    (f)        Failed to ensure Monthly bank reconciliation statements.

    This is an audit query that was asked by internal auditor and answered to
    their satisfaction as follows: Bank accounts and reconciliations were not
    up to date at the point of internal audit of JTI. Due to capacity gaps, the
    financial records were inadequately prepared and stored. An exercise to
    bring the books into order and payment vouchers recovered and posted
    was undertaken. All supporting documents were submitted to the internal
    auditors. Bank reconciliations have been done up to 30th June 2012.
    Additionally in 2013/14 a senior accountant has been posted to provide
    support. (Annex Fin 14– JTI Bank Reconciliations)




44 | P a g e                                 FINAL REPORT GBS/JSC 15      T H   OCT 2013
    Since the JSC-JTI has been given a separate vote (205) and IFMIS has been
    installed for Vote 205, the process to close the JTI KCB Account is
    underway upon completion and certification by the Internal Auditors.

    (g)        Payment to be made from JTI before being subjected to scrutiny
               by voucher examination

    This is an audit query that was asked by internal auditor and answered to
    their satisfaction as follows. The process in place was that JTI submitted
    their vouchers after processing for examination. The staff capacity did not
    allow for a full time examination team at JTI. This has since been addressed
    in current FY2013/14 where JSC-JTI is a separate vote. An examiner with
    adequate knowledge and experience has been posted to JSC-JTI.

    (h)        Failed to ensure AIEs issued during 2012/2013 financial year
               did not exceed approved estimates by 72,956,565

    This is an audit query that was asked by internal auditor and answered to
    their satisfaction. This has also since been addressed in current FY2013/14
    where JSC-JTI is a separate vote. However, below is an extract of our
    response to the auditor: The over issue was as a result of the cutting down of
    the supplementary budget 1. The supplementary budget was cut after JTI had
    received the 67million in addition to AIE for quarter I and II. Thereafter no
    further AIE was sent to the JTI in quarter 4 to address the shortfall arising
    from the budgetary cuts in supplementary one.



    13.Audit Report 2012/2013



45 | P a g e                             FINAL REPORT GBS/JSC 15      T H   OCT 2013
    The Financial Statements for the current financial year were being
    finalized. The PFM Act 2012, Section 81 (4) provides that the Financial
    Statements are finalized not later than three months after the end of each
    Financial Year – effectively not later than 30th September.

    The Financial Statements are to be submitted to the Auditor General, with
    copies to the Controller of Budget, National Treasury and Commission on
    Revenue Allocation. This was done within the statutory stipulated period.
    We have already submitted our financial reports (Annex Fin 15Letter of
    understanding with KENAO.)



    B. ALLEGATIONS OF MISMANAGEMENT IN HUMAN RESOURCE
    14.ALLEGED IRREGULAR SECONDMENT OF STAFF

There has been no irregular secondment of staff. As a result of the expanded
mandate of the office of the Chief Justice and the newly created office of the
Chief Registrar in the Constitution of Kenya 2010, the Judicial service
Commission on 16th November 2011 approved a new structure that provides
additional Human resources capacity within the office of the Chief Justice, the
Deputy Chief Justice, the Office of the Chief Registrar, the President Court of
Appeal and the Principal Judge High Court. The rationale for this was that
these constitutional offices have wide ranging duties both judicial and
administrative which could not be sufficiently undertaken given the then
staffing arrangements.

Prior to the resolution of 16th November 2011, the Chief Registrar upon
reporting on duty in September 2011, requested for enhanced capacity in the

46 | P a g e                            FINAL REPORT GBS/JSC 15    T H   OCT 2013
OCRJ as the previous office of the Registrar- High Court, could not cope with
the demands of the mandate of the newly created office and its accompanying
constitutional and legislative mandate.

As the Chief Registrar I sought authority and approval from the Head of the
Judiciary - the Chief Justice to second officers from other Government
institutions to the Judiciary to help bridge the capacity gap as per section 27D
(II) of the JSSR. In particular the Hon. Chief Justice as Head of the Judiciary
approved the secondment of Mr. Nicholas Okemwa, Ms. Anne Nyokabi
Nganga, Mr. MbuguaKabiroJoselynKathure and Mr. Michael Mayaka from
NCLR and IEBC. (Annex HRM 1 – Letter approved by CJ

Secondment is a common practice in government especially in instances
where there is a need to fill a capacity gap or skill urgently.

In addition, I further requested for officers to be seconded to the Judiciary
from other institutions with the aim of enhancing capacity in the Judiciary as
the recruitment of Directors was underway. These other agencies included;
Ministry of Finance, Directorate of Public Procurement, Public Service
Commission      -   Directorate   of   Personnel     Management,       Ministry    of
Communication       and   Information,    Ministry    of   Forestry,   Ethics     and
Anticorruption Commission, University of Nairobi and the Ministry of
Transport. (Annex HRM 2List of officers seconded to the Judiciary)

Further JSC in its meeting on 1st December 2012 adopted the report of the JSC
HR Subcommittee and resolved to absorb, those officers who were already
serving on secondment and had shown interest in remaining in the Judiciary
in accordance to rule 9 (2) of Third Schedule to the Judicial Service Act
.(Annex HRM 3 JSC resolution)
47 | P a g e                              FINAL REPORT GBS/JSC 15       T H   OCT 2013
    15.ALLEGATION OF PLACING STAFF ON IRREGULAR SALARY SCALES
         AND PAYMENT OF UNAUTHORIZED BENEFITS

There is no irregularity that has occurred. It is a practice in government that
officers who are on secondment move with their salary and benefits from
their previous employers as per the circular of the Public Service Commission.
The JSC has previously relied and used the same circular to approve the terms
and conditions of a judge of the Court of Appeal. Therefore there is no
irregularity in seconded staff moving with their salaries (Annex HRM 4-DPM
circular)

Further, The Judicial Service Commission HR Sub-committee in its meeting
held on 19th November 2012 was presented with the qualifications and job
description of the officers who were serving on secondment and temporary
appointment.      The   Sub-committee    adopted    the   report   and      made
recommendations to the full JSC to adopt the same report. The report was
then implemented accordingly. Annex HRM 5 Minutes of 19th November 2012
and Annex HRM 6 Reportpresented to the JSC HRM Committee

    16.Alleged irregular recruitment of students, interns, casuals and
         temporary staff.

There has not been irregular recruitment of any staff. The Judiciary has in the
past and continues to provide students with practical experience that merges
theory and practice. The Judiciary has on occasion received letters from
various institutions of higher learning to provide their students with practical
work experience.




48 | P a g e                            FINAL REPORT GBS/JSC 15     T H   OCT 2013
Use of students in judicial programs actually saves the public money while at
the same time developing and mentoring the youth. Therefore the Judiciary in
line Article 56 of the Constitution supports the student programs to ensure
that youth (a) access relevant education and training; (b) have opportunities
to associate, be represented and participate in political, social, economic and
other spheres of life (c) access employment.

Clinicals program for students - In order to provide students with a
practical experience that merges theory and legal practice, students who have
completed their second year at law school at the University level are expected
to undertake the clinical program at the law courts. The programs runs for a
period of two months and the students are expected to familiarize themselves
with court operations and thus will attend court and assist in the registries.


Pupillage/internship programs – The Kenya School of Law has approved
the Judiciary providing from at least Resident Magistrate Level and above to
act as pupilage centers. The Legal Education Act vide Section 22(1)(c),
requires that “For purposes of the award of a certificate or diploma in law, a
person shall undergo, in the case of a professional post graduate course at
least one year of instruction, and sit and pass all the examinations in the core
courses set out in the Second Schedule.” The Pupilage program (six months
attachment) is one of the requisite programs set out in the Second Schedule of
the Act. Students in other disciplines are attached on the three months basis.
All internship applications are processed through the Directorate of HR based
on availability of space and requests received from user departments. This
program has been highly successful despite interference and undermining of
the same by Commissioner Emily Ominde. Commissioner Ominde almost

49 | P a g e                            FINAL REPORT GBS/JSC 15      T H   OCT 2013
derailed this program by instructing magistrates to prohibit the pupils from
carrying out any duties thereby creating confusion, time wasting and
temporary backlog of cases that were to be dealt with by the rolling out of this
program. I raised this issue with the Hon. Chief Justice who stepped in
and resolved the matter (Annex HRM 7 –Letter to Emily Ominde by CJ).


Casual and temporary appointments - The JSSR Section D.18(i)               of the
states that “The Authorized Officer will be responsible for approving the hiring
of casual workers after ascertaining that there is need to hire them and that
funds are available within their budgetary provisions to meet the resultant
expenditure.

Further Section B.4 (i) states that the regulations governing the making of
temporary appointments are contained in the Judicial Service Commission
Regulations.   Appointments on such terms may be made for a period not
exceeding one year without the authority of the Commission but may not be
continued for a longer period without such authority.

Therefore the request to hire casual staff and temporary staff is generated by
the user department and is based on a need or project based. Thereafter the
request is processed by the Directorate of Human Resource and Management
upon approval. (Annex HRM 8– Requests for casual staff). This is the process I
explained to Commissioner Justice Mohamed Warsame when he came to my
office demanding people hired as casuals. He did not take it kindly stating that
I should directly hire “his people” like the former Registar who hired 30
people for him. This is an issue I raised with the Hon. Chief Justice who told
the said Commissioner not to be coming to my office.


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Such project undertaken with the help of casual staff include:

       • Typing of proceedings
       • Data entry for the election petition case management system
       • Statistics gathering
       • Auditing of court cases at the registries
       • Auditing and arranging finance documents.

It is noteworthy to point out that the hiring of casuals has been a bone of
contention between my office and the JSC. Despite the JSSR granting my office
powers to engage temporary staff and the Judicial Service Act appointing me
as the authorized officer in charge of human resources, the JSC has resolved to
be the one to hire even a cleaner for a single day. (Annex HRM 9JSC Human
Resource Committee of 26th February 2013).

    17.ALLEGED FAILURE/ NEGLECT TO DEVELOP A HUMAN RESOURCE
          WORK PLAN.

The Judicial Service Commission has never requested my office to provide
them with a human resource work plan and therefore the accusation of failure
and neglect to develop a human resources work plan does not arise.

However I wish to state as follows:

  I.      That the Judiciary with the support from GIZ engaged the services of a
          consultant in Oct 2012 to conduct a Comprehensive Human Resource
          Inventory. The consultant developed an online gathering tool in
          collaboration with our ICT Directorate for staff to fill in their details
          (skill, experience and qualifications date of employment). (Annex HRM
          10– Data entry form)
51 | P a g e                               FINAL REPORT GBS/JSC 15     T H   OCT 2013
         That on completion of the online system, I sent out two a memos dated
         9th and 11th November 2012 requesting staff to fill in the online forms.
 II.




         That the consultant completed the 1st phase of the exercise and
         (Annex HRM 11– Memo Requesting Staff to fill form online)


         submitted    a   preliminary   report   in   March    2013   and      made
III.


         recommendations for the Judiciary to conduct a certificate verification
         exercise. The provisions of the said services were advertised (Annex


IV.      That the Judiciary undertook a biometric registration of all judicial
         HRM 12Advert -Certificate verification exercise)


         officers and judicial staff (Annex HRM 13CD biometric exercise).


       18.ALLEGED DISCRIMINATORY PRACTICES AGAINST STAFF

I have never practiced any discrimination against any staff member. First and
foremost I wish to clarify that Ms. Anne Ng’ang’a, who sits in my office is NOT
a secretary and is not qualified to be one. She holds the position of Chief
Administrator office of the Chief Registrar of the Judiciary and has previously
held the Positions of Publishing and Administrative Officer at the National
Council for Law Reporting (NCLR) and Regional Liaison Coordinator at the
Interim Independent Electoral Commission. Mr. Nicholas Okemwa is an
advocate of the High Court of Kenya and holds the position of Legal Counsel
Office of the Chief Registrar of the Judiciary and was the Head of the Research
and Development Department at NCLR. Thus these officers constitute part of
senior management as their positions are at deputy director level.

The issuance of cars to judicial staff is at the discretion of the Accounting
officer, but the decision is based on the nature of the job of the assigned


52 | P a g e                               FINAL REPORT GBS/JSC 15     T H   OCT 2013
officer, and the need for the said officer to be available as and when requested
at the shortest available time and for those who must work either very early
or very late. The Judiciary has in the past and continues to provide vehicles for
its senior judicial officers- Judges.

Due to the critical nature of their work, the Judiciary has also made provision
for vehicles for some of its senior managers and the staff in critical offices this
include; the Directors, Registrars, Deputy Registrars, Transport Office,
Facilities Office, office of the Chief Justice and office of the Chief Registrar. It is
also worth noting that these officers subsequently do not earn a transport
allowance. (Annex HRM 14Attached list of Judiciary staffand JSC Commissioners
with cars).

The same discretion used to issue vehicles to the part time Commissioners
and the Chief of Staff Duncan Okello even at the period when the latter was
not formally employed by Judiciary. Mr. Abdul Omar, the Legal Counsel in the
Office of the Chief Justice has similarly been issued with a vehicle.

Reimbursement of further studies in the Judiciary is not unique to the said
officer, as other officers in the judiciary have been reimbursement for similar
expenses. e.g Lady Justice Grace Nzioka, Justice Hannah Okwengu,                  Lady
Justice Mary Kasango, Bridget Konga amongst others (Annex HRM 15
Government circular)



    19.ALLEGED IRREGULAR STAFF PROMOTIONS

There have been NO irregular staff promotions. Promotion of staff in the office
of Chief Registrar was not accelerated; upon joining the Judiciary the officers

53 | P a g e                               FINAL REPORT GBS/JSC 15        T H   OCT 2013
were engaged on temporary terms at a grade, which the accounting officer
had authority to engage. Thereafter when their names were being considered
for permanent and pensionable terms, their qualifications and experiences
were evaluated and subsequently approved by the JSC into their current
positions.

    20.AUTHORIZING FOREIGN TRAVEL OF STAFF WITHOUT DUE
         PROCESS

The Accounting Officer of any Government institution is authorized to
approve foreign travel subject to the nature of the assignment and availability
of funds. Foreign travel is an item budgeted for in the Judiciary Budget.

The rates payable to judicial officers and staff when they travel locally and
internationally are government approved rates. The Judicial Service
Commission in its meeting held on 2nd December 2011 approved the revised
rates of daily and subsistence allowance/per diem rates for commissioners,
Judicial officers and Judiciary staff travelling on duty outside Kenya. (Annex
HRM 16 Approved per diem rates).

The allowances alleged by the JSC as having been paid to Nicholas
MuturiOkemwa, Anne Nyokabi Nganga and KabiroMbugua are incorrect. From
the documentation provided, the JSC has erroneously tabulated the figures to
include all imprests issued and all imprestssurrended, being totaled,leave
commutation, and double entries of sitting allowances to arrive at their the
grand totals. The IFMIS system for a defined employee captures all payments
and repayments made to and by the employee. This would include imprest,
per-diem (local and foreign), and reimbursements for approved expenses etc.
It is therefore a very unreliable format to use the invoice register in the IFMIS
54 | P a g e                            FINAL REPORT GBS/JSC 15      T H   OCT 2013
system. In fact the invoice register captures including money expecting to be
paid but has not been actually paid out. At the time of writing this report, we
did not have access to the IFMIS system as it had been shut down due to an
ongoing fraud investigation. This is one of the reasons as to why I sought an
extension of time to adequately respond to the allegations.

The approvals given for foreign travel are in no way discriminatory as the
approvals given include staff from different cadres (Annex HRM 17– list of
approved travels)

Previously the Hon. Chief Justice approved foreign travel for judges and
magistrates while the Chief Registrar approved travel for judicial staff. The
Hon. Chief Justice through a written directive on the 13th July 2013 ordered
all approvals for foreign travels for all persons in the judiciary irrespective of
cadre should emanate from him (Annex HRM 18CJ directive on foreign
travel).Although I have authority as per the law, I have not since the circular
above, approved any foreign travels.



    21.AUTHORIZING IRREGULAR PAYMENT OF ALLOWANCES TO STAFF

This is not irregular and I have the authority to pay lunch and dinner
allowances. Payment of lunch and dinner allowances is not irregular and is
provided for by the Government regulations and as such there are approved
rates for these payments. (Annex HRM 19Approved lunch and dinner
allowances).

Payment of allowances was not unique to the officers in question. The
allowances were paid based on approved rates and tasks assigned to the

55 | P a g e                             FINAL REPORT GBS/JSC 15      T H   OCT 2013
officers. Other officers, whose names have been conspicuously left out of this
allegation, have also received the allowances. For instance the staff in the
former High Court Registrar’s office were paid lunch and dinner allowances
amounting to not less that 10days per month; the security detail in the Chief
Justices offices and Supreme Court Judges and other officers working on
special projects such as elections, are also paid allowances amounting to not
less than 20days every month. The Human Resource and Administration staff
have been paid lunch and dinner on various occasions when preparing
documents for the JSC, the staff members from various court stations that
worked on the Rapid Results initiatives to clear backlog of cases in their
respective court stations were paid allowances. (Annex HRM 20requests for
Lunch and dinner allowances)

Also some of the allowances paid to the officers were for sitting in statutory
committee meetings, of which the officers are members or were coopted to
attend.

    22.TAKING IRREGULAR DISCIPLINARY ACTION AGAINST STAFF

I have not taken any irregular and unilateral discipline action against any
judicial staff and in particular those mentioned in your questions to me. The
officers in question Moses Serem, Rose Ochieng and Linda Thuma all applied
for leave which I approved as the Accounting Officer.

The decision to grant them leave was discussed with each of them and the
Chief Justice as the Head of the Judiciary. E.g. during the restructuring of the
family division I personally walked to the CJ and he gave his approval to grant
leave to some staff in the family division to pave way for the changes that
were taking place. At this time we were on a new project dubbed operation
56 | P a g e                           FINAL REPORT GBS/JSC 15      T H   OCT 2013
clean up the registries as part of service delivery to the public. At that time
there was poor service at the family registry. Simple orders would take
months to be typed, extensive queues at registries while our staff were absent
or talking on phones. All this chaos was presided over by one Linda Thuma
who incited staff when we started the clean-up exercise not to cooperate. We
even found court documents hidden in cabinets. We realized the cleanup
could not continue as Linda was a hindrance and upon discussion with her she
applied for leave, (Annex HRM 21attached email from CJ on Moses Serem and
handwritten note by the Chief Registrar to the Chief Justice on the Family
Division issue endorsed by the latter).

The issue of Rose was also discussed extensively with her as she was
frustrating efforts to have Judges salaries processed. In fact upon my
reporting for duty the Chief Justice had not received his salary for three
months and when asked why she informed me that the Chief justice had not
accepted his offer of appointment and as such she would not process his
salary. It was only after I intervene that she began processing his documents
for payment. Other judges had suffered the same fate and it took my personal
intervention to ensure that the Pay change advices were done and I personally
followed up with treasury to ensure the judges received their salaries.

I then had a discussion with her on her performance and it was agreed that
she proceeds on leave, and I consequently wrote to the Public Service
Commission recommending that she be seconded to the ministry with the aim
of building her capacity in areas that required improvement. The Public
Service Commission thereafter called MsOchieng for a brief discussion. After
the said meeting PSC wrote to my office and informed me that Ms.


57 | P a g e                              FINAL REPORT GBS/JSC 15   T H   OCT 2013
Ochiengwillfind it difficult fitting in the civil service since the human resource
management and development policies and practices had undergone major
changes in the reform era, they further advised that the Judiciary may
consider using available separation options if the officer is not meeting the
employer’s performance expectation.(Annex HRM 22 – Letter from DPM on
Rose Ochieng and Leave Application)

Regarding the case of GraceNgala, I have not personally interacted with
GraceNgala but after perusing her file I discovered that she has a discipline
case pending before the Human Resource Management discipline committee
which I’m not a member. (Annex HRM 23 - Grace Ngala documents)

Notwithstanding the foregoing as per section 8 of the Judicial Service Act, I am
the authorized officer for the Judiciary, who shall be responsible for the
efficient management of the day-to-day operations and administration of
human resources in the judicial service.

    C. IRREGULARITIES AND IMPROPRIETIES IN PROCUREMENT


    23.AUTHORIZING IRREGULAR PROCUREMENT PROCESS.


      (a)      Elgon Place – I reiterate that JSC has no role in the procurement
               process for the Judiciary and no approval is required. However, I
               duly informed the JSC which confirmed the process on January 15th
               2013.


    (ii)         Irregular single sourcing and Works Undertaken by the
                 landlord

58 | P a g e                              FINAL REPORT GBS/JSC 15     T H   OCT 2013
         There was no irregularity as the PPDA section 74 provides for direct
         procurement or single sourcing. The Judiciary had signed a lease
         agreement with the owners of the building M/s Sealink Holding Limited.
         Considering that the building was new and the defects liability period
         for the contractor who had been handling the main construction was
         still in force, the lease agreement provided that the main contractor
         would undertake all partitioning/works including structured cabling
         and fitting at the tenants cost. This would ensure that the standard and
         quality of fit-outs would be in line with the rest of the development. The
         tenant’s architects would design office layout and provide the space
         plan. All works carried out by the Landlord’s consultants in assessing
         and approving the tenant’s fitting out plans would be at the cost of the
         tenant. Any alterations to the power supply would require verification
         by the Landlord’s appointed Electrical Engineer at the cost of the tenant.
         This condition was inserted because the intended alterations and
         partitions were going to affect the structure of the building which would
         nullify the defects liability period that was given to the Contractor.


         Because of this provison in the lease agreement, the only viable
         procurement method among those provided for in the Public
         Procurement and Disposal Act, 2005 that could be used to speedily
         make the building usable as intended was direct procurement. Sec. 74
         (1) of the Public Procurement and disposal Act, 2005 provides that “a
         procuring entity may use direct procurement as allowed under
         subsection (2) or (3) as long as the purpose is not to avoid competition.




59 | P a g e                                FINAL REPORT GBS/JSC 15      T H   OCT 2013
         Sec. 74(2) provides that a procuring entity may use Direct Procurement
         if the following are satisfied:-


               (a)there is only one person who can supply the goods, works or
                 services; and
               (b) there is no reasonable alternative or substitute for the goods
                 works or services


         In the circumstances we were in after signing the lease agreement with
         the conditions therein, it was only the Landlord’s main contractor who
         could carry out the works.


         Procurement of the works was thus undertaken using direct
         procurement method where the Tender Committee first approved the
         procedure and commencement of negotiations after determining that
         the relevant condition set out in section 74 of the Public Procurement
         and Disposal Act, 2005 had been satisfied.


         The Bills of Quantities prepared by the Consultants were the sent to M/s
         Knight Frank Limited who had participated in the tender on behalf of
         the landlord. Knight Frank Limited forwarded the Bills of Quantities to
         the Contractors M/s Sentrim Limited who submitted a quotation
         amounting to Kshs. 247,767,150.


         M/s Sentrim’s bid was first given to the project consultants for analysis
         and thereafter a team from the Judiciary assisted by the consultants
         engaged the contractor in negotiations. After several days of


60 | P a g e                                FINAL REPORT GBS/JSC 15   T H   OCT 2013
         negotiations, the contractor agreed to discount some costs and the team
         agreed on a number of items that could be omitted now and
         implemented later without affecting operation of the Court as the
         available funds were not adequate. Among the omissions were several
         air conditioning units except for the very necessary ones at the
         basement cells, server rooms, switch rooms & penthouse, all active
         equipment for CCTV and structured cabling and all supplementary
         works to the lift. Below is a summary of the final agreement.

         The final agreed net amount of Kshs. 188,059,723 was presented to the
         Tender Committee for approval which was granted and the processes of
         contract signing and implementation commenced. It was estimated that
         the works would be completed within 16 weeks with the contractor
         working day and night.

         This information was shared with the JSC.

    (ii)       That there were Payments for works without certificates

         Payment for works are as per certificates for the contractor and invoice
         for consultant.



    (iii)      That the Place was furnished without authorization of
               commission and through direct procurement.

         Approval or authorization of the JSC is not required. A framework
         contract for the supply and delivery of furniture for the Judiciary exists.
         Framework contracting is standard best practice in procurement and
         the Public Procurement Oversight Authority has issued guidelines on

61 | P a g e                               FINAL REPORT GBS/JSC 15       T H   OCT 2013
         the same after observing that there is excessive use Request for
         Quotation (RFQ) method by procuring entities in most of their
         procurements. Further, procurement units pre-occupy about 90% of
         their time in processing procurements through the aforesaid method.
         To forestall these challenges, PPOA prepared guidelines for framework
         contracting as instructions for making awards of indefinite delivery
         framework contracts pursuant to Section 9(c)(i) and (iv) of the Public
         Procurement and Disposal Act, 2005. The Judiciary has taken up
         these best practices to reduce both paper work and clerical activities
         involved in preparation of quotations. (AnnexSCMS26Guideline on
         framework contracting)

    b. Direct Procurement of SimiyuWerunga.

Once again, the issue of security concerning the election period and was raised
by the Assumption into Office of the President Committee. We have signed
confidentiality agreement and would need a waiver from Office of the
President to give details as it is a national security issue.



    c) Generator

    This is included in the issue of security concerning the election period and
    was raised by the Assumption into Office of the President Committee. We
    have signed confidentiality agreement and would need a waiver from
    Office of the President to give details as it is a national security issue.


    d) Chief Justice’s parking area and refurbishment of kitchen


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    There was no direct procurement of services from Arreda Homes. In the
    two instances where a total of Kshs. 9,841,621.60 was paid, the processes
    were subjected to competitive bidding. (Annex SCMS 27 – JTC Minutes)


    e) Procurement of DEWCIS Ltd

    The Judiciary through a memorandum of understanding with the National
    Council for Law Reporting had requested the latter for assistance in ICT
    projects up to the point the judiciary had the requisite capacity.

    This company was awarded the contract by NCLR, through an open
    tendering process. (Annex SCMS 28 Memorandum, advertisement and
    contract for the case management system)

    The Directorate of ICT had justified the need to have the election petition
    system modeled using the same open source architecture as the Case
    Management System that had initially been procured and installed. (Annex
    SCMS29 Justification by Directorate of ICT)

    Section 74(2) of PPDA provides that a procuring entity may use direct
    procurement if the following are satisfied (a) there is only one person who
    can supply the goods, works or services; and (b) there is no reasonable
    alternative or substitute for the goods works or services. The tender
    committee approved direct procurement of the election petition system
    modeled on the case management system architecture since it was
    convinced that the above two conditions were met as no other person
    could supply the services as the contractor had not fully handed over the
    case management system and there was there was no reasonable
    alternative or substitute for the services taking into account the cost as
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    well as the short time frame before the election petitions began and the
    need to have a module modeled around the same architecture as the
    earlier case management system.

    The tender committee resolved to award the contract for supply, delivery
    and installation of an election petition case management system to M/s
    DewCis Solutions. Before approval by the Tender Committee, DewCis had
    demonstrated the system to members of JWCEP together with all other
    stakeholders involved in the election including the IEBC. (AnnexSCMS
    30(JTC minutes for the election petition case management system)

    f) System has not been availed for scrutiny

    The System has been deployed and is used extensively in managing the
    election petitions across the country. (AnnexSCMS 31Reports from Case
    Management System)

    g) IBM servers and JO WORLD agencies

    The computer servers were not single sourced as alleged. Bids were
    received and evaluated by an evaluation committee. The tender committee
    resolved to award supply and delivery of the servers to M/s Joworld.
    (Annex SCMS 32Minutes of the Evaluation Committee and the Tender
    Committee)

    h) Presidential Dias

    This was an issue for the Assumption into Office of the President
    Committee (but not necessarily under the confidentiality agreement). The
    budget for the ceremony was split into several parts with different


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    institutions footing the bill for different activities. The Judiciary was
    allocated the expenses for the erection of the inauguration arena, sound
    and lighting and live streaming of the ceremony. The suppliers were
    approved by the Committee after undergoing security vetting. More details
    may be obtained from the Office of the President.

    i) Purchase of Chief Justice’s House- Failure to provide critical
         information

    The background on the purchase of the Chief Justice’s house is as follows:
    On 27th October, 2011just four months after taking office, the Hon. Chief
    Justice demanded the purchase of an official residence for the Chief Justice
    through a letterto the then Secretary of the Cabinet/Head of the Public
    Service Amb. Francis Muthaura (He also demanded in the same letter that
    one should be bought for the Speaker of the National Assembly). The
    rationale was that the Hon. Chief Justice was living in a rented flat and
    could not be able to coordinate, harmonise and socialize with judicial
    officers. Further the official residence could be a place to entertain
    national, regional and global visitors of the Judiciary.

    Following the request by the Hon. Chief Justice, a cabinet memo was
    prepared and tabled before the Cabinet by the Ministry of Justice, National
    Cohesion and Constitutional Affairs. The cabinet duly approved the
    proposal with a budget of 300 million. Parliament however allocated 210
    million in the Judiciary budget for the FY 2012/2013.

    The process was through open tender advertised on the local dailies on 5th
    October, 2012.Five bidders responded and contract was awarded to the


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    most suitable bidder. The JSC was appraised the award through a meeting
    on 10th May, 2013. As all the bids were above the budget allocation, I
    exercised my powers to reallocate funds within sub votes as provided for
    by Section 43 (2) of the Public Finance Management Act.

    It is not clear which critical information was required. JSC has to make this
    clear. The bid document is prepared by the Directorate of Supply Chain
    Management and security bonds were not a prerequisite in the opinion of
    the Directorate. (Annex SCMS 33 Purchase of CJ’s Residence Report)

    j) Mombasa Building

    In the Financial year 2013/204 the National assembly appropriated Kshs.
    900 million for the acquisition of a building in Mombasa. This was after the
    media had reported on the plight of the Mombasa LSK lawyers who
    protested the decision to have the Court of Appeal in Mombasa

    In July I travelled to Mombasa with the President of the Court of Appeal to
    have a meeting with the local LSK branch as they were threatening to
    boycott going to the Court of Appeal in Malindi. During the meeting it
    emerged that the LSK had met some JSC Commissioners led by
    Commissioner Ahmednasir and alerted them about a building owned by
    postal corporation of Kenya that was available for leasing or purchase.

    Upon my return to Nairobi I immediately got in touch with the Postal
    Corporation and held a meeting with their representatives where it was
    agreed that they will avail documents on the buildings for scrutiny by our
    architects and engineers.



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    Soon thereafter, Commissioner Ahmednasir came to my office and upon
    my informing him of the meeting with the Postal Corporation he said that
    he will get a better building for the Judiciary. I told him to put his bid when
    the time comes. This is a conversation I reported to the Hon. Chief Justice
    and to senior management.

    [This is not the first time that Commissioner Ahmednasir has approached me
    in procurement matters. Particularly he approached me to purchase a multi-
    story building in Eastleigh for the Judiciary. To get him off my back I referred
    him to the legal counsel in my office with whom he exchanged emails (Annex
    SCMS 34 email correspondence with CommissionerAhmednasir introducing
    Adan Mohamed of telephone number 0722-752-005).

    In another instance he brought the Chair of the National Social Security Fund
    Mr. Adan Mohamed of telephone number 0722-752-005 who is connected
    with an IT company. Commissioner Ahmednasir requested that his colleagues
    company be awarded ICT infrastructure contracts that were budgeted for
    approximately Kshs 630,000,000. I advised him that he has to bid like any
    other supplier and the IT company question was not successful.
    Commissioner Ahmednasir was not amused.

    Commissioner Ahmednasir has also tried to influence me to allow him source
    a case management system for the Judiciary. This is evidenced by the
    interview he had with the K24 Television station where he stated that he will
    sell an ICT program to the Judiciary (Annex SCMS 35 K24 Interview CD
    attached) ]

    D. INSUBORDINATION          AND     COUNTERMANDING           DECISIONS        OF
         COMMISSION.
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    a) Designation of Hon. Caroline Kabucho and Hon. Kennedy Kandet

    The Hon. Chief Justice designated Hon. Caroline Kabucho and Hon.
    Kennedy Kandet as Acting Assistant Registrars on March 5th 2012. At this
    point JSC had not recruited substantive registrars for the various court
    levels. Thereafter the two served for a year with excellence. As Chief
    Registrar I thereafter recommended to JSC to designate as the two as
    deputy registrars to deputise the newly recruited registrar of the High
    Court and Registrar of Magistrates Court. The JSC concurred that the two
    had been outstanding in their execution of their duties and recommended
    that they first serve as assistant registrars.

    However, JSC had overlooked the fact that the two had already served as
    Acting Assistant Registrars. For that reason I recommended yet again that
    they be designated as Deputy Registars to which suggestion the JSC
    concurred. However the same has not been effected as their pay as issue
    remain unresolved.

    b) Job changes for positions of Chief Accounts Controller and
         Registrar of Court of Appeal

    There were no irregular job changes. Consultants were hired to help the
    Judiciary streamline its financial management processes to incorporate
    changes in the law brought about by the enactment of the Public Finance
    management Act and need to embrace best practices. This culminated by a
    report and presentation to the Finance and Administration Subcommittee
    by the Director of Finance. The restructure of the Directorates was


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    affirmed by the JSC Commission. They adopted the structure as presented
    by the Director of Finance.

    The Registrar of the Court of Appeal was directed by the Hon. Chief Justice
    to supervise the Mombasa-Malindi circuit

    c) Failure to attend meetings

    To the best of my knowledge I have attended all JSC meetings in which my
    input is required in my multiple roles within the judicial system. However
    it is important to point out that although the JSC is a part time Commission
    the meetings thus far have exceeded 467 meetings which in all practical
    terms make it impossible for me to attend all of them as I have full time job.
    To attend each and every meeting would amount absconding my
    constitutional duties ( Annex HRM 24 – Letter by Registrar JSC)

    d) Failure to implement resolution of the Commission’s resolution of
         20.4. 2013 on vetted judges.

    It is true that the JSC at some point passed a resolution that some judges
    who had been vetted out by the Judges and magistrates Vetting Board be
    reinstated with their full benefits and remuneration. When JSC gave me
    this resolution, I informed JSC that I do not have the powers to effect this
    resolution and that the power resides with the Consolidated Fund Services.
    However, I did prepare the pay change advice slips files for the respective
    Judges and transmitted the same to Treasury. However it appears that
    Treasury delayed in effecting the changes as they sought the legal advice of
    the Hon. Attorney General(Annex HRM 25– legal opinion by the Attorney
    General )

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    e) Obstruction on the development of JSC regulations under section
         47 of JSC Act.

    The development of the JSC regulations is an activity that must be moved
    by the Commissioners themselves. The role of Secretary is to take minutes,
    implement resolutions and not to set or determine the agenda for the JSC.
    There is no resolution by JSC for the Secretary or Chief Registrar to develop
    regulations. (Annex HRM 26 - JSC correspondence on the regulations). The
    Judiciary Fund Regulations, the Judiciary Mortgage Scheme Regulations
    and Judiciary Car Loan Scheme Regulations were developed by my
    officeunder my authority.



    f) Failure to follow due diligence in acquiring and leasing Elgon
         premises

    The acquisition was through open tendering and followed the laid down
    procedure. (Ditto Annex SCMS 12)

    g) Partitioning of Elgon place

    Already answered

    h) Furnishing of Elgon place

    Already answered

    i) Failure      to    furnish   information   on   audit   report         of   staff
         rationalization and Judiciary Staff Payroll




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    The Judiciary with the support from GIZ engaged the services of a
    consultant in Oct 2012 to conduct a Comprehensive Human Resource
    Inventory. The consultant developed an online gathering tool in
    collaboration with our ICT Directorate for staff to fill in their details (skill,
    experience and qualifications date of employment). On completion of the
    online system, I sent out two a memos dated 9th and 11th November 2012
    requesting staff to fill in the online forms. The consultant completed the 1st
    phase of the exercise and submitted a preliminary report in March 2013
    and made recommendations for the Judiciary to conduct a certificate
    verification exercise. The provisions of the said services were advertised.



    B. MISBEHAVIOUR

    It is my humble opinion that the constitutional office holders more so the
    JSC Commissioners have to follow the law to the letter. The JSC’s decision
    was irregular and unprocedurally unfair as evidenced by the out of court
    settlement in the suit I filed.That was the context which I alluded to in my
    remarks. I did not attempt to exhibit contempt towards the JSC.

    Article 47 of the Constitution Kenya provides that every person has the
    right to administrative action that is expeditious, efficient, lawful,
    reasonable and procedural fair. Further the article provides that if a person
    has been or likely to be affected by an administrative action, the person has
    right to be given written reasons for the action. The JSC did neither.

    I therefore exercised my right as espoused in Article 33 of the Constitution
    to respond to the JSC

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    CONCLUSION

    1. From all the foregoing information, it is clear that there have been no
         irregularities as alleged and that indeed the Judiciary’s Human resource
         and financial management systems are run in accordance with the
         Constitution, the law and related legislation. I confirm that many of the
         queries raised have been dealt with in previous audit reports of the
         Judiciary.
    2. The JSC in future must consider the source of allegations/information
         and verify the same in order to prevent obvious misrepresentations,
         errors, inventions and creative interpretations that may exhibit lack of
         requisite knowledge before putting to task an officer to answer
         questions on the same.


    3. However, the Judicial Service Commission may in its wisdom and in the
         spirit of full transparency ask the independent bodies concerned with
         prudent financial management of Government, such as the public
         Procurement Authority (PPOA) and the Auditor General to confirm the
         explanations made in this report.



    4. It may however, be necessary in the very near future to seek a legal
         opinion from the Hon. Attorney General as the Chief Legal counsel of the
         Government of Kenya, in outlining the complementary yet different
         constitutional roles, responsibilities and mandates of the Office of the
         Chief Justice, the Judicial Service Commission and the Office of the Chief
         Registrar. This will assist in resolving any conflict that may arise in


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         future and streamline the workings of an efficient judicial system for
         Kenya.


    5. It is important for the JSC or indeed other public bodies to approach
         issues in a sober manner as any other approach may damage not only
         the reputations of the individuals involved but the entire institution
         thus eroding public confidence. This is highly undesirable especially
         since the Judiciary is rightly viewed as the custodian of justice.



    6. I trust that this exercise/enquiry has been a learning one for all the
         different institutions within the judicial system of Kenya and that we
         shall carry forward all lessons learned from this process in improving
         the working relationships between all offices and officers within. The
         transition of the Judiciary within the new constitutional framework will
         have many challenges but I am confident that the commitment to
         transformation and reforms will overcome these shortcomings.




    GLADYS BOSS SHOLLEI

    CHIEF REGISTRAR OF THE JUDICIARY/ACCOUNTING OFFICER OF THE
    JUDICIARY/ADMINISTRATOR OF JUDICIARY FUND/SECRETARY OF
    THE JUDICIAL SERVICE COMMISSION




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