Former Samburu Governor Lenolkulal challenges jail term, claims magistrate misinterpreted law

Former Samburu Governor Moses Lenolkulal has filed an appeal against his eight-year prison sentence, arguing that the magistrate misinterpreted the law and failed to properly evaluate the evidence presented.

In his appeal to the High Court, Lenolkulal, convicted last month for conflict of interest and unlawful acquisition of public funds, argued that the trial court erred in its judgement.

According to the former governor, the magistrate wrongly concluded that the Anti-Corruption and Economic Crimes Act (ACECA) prohibits public officers from engaging in business with public entities where they are employed.

He argued rather that the law allows such dealings, provided there is full disclosure, and that it only becomes an offence when there is concealment.

“The learned magistrate erred in law by finding that the Anti-Corruption and Economic Crimes Act barred public officers from trading with public entities where they are employed,” Lenolkulal said in the appeal filed on Friday, August 30, 2024.

“The magistrate erred in fact and law by failing to fully analyse and evaluate the evidence adduced and thereby arrived at the wrong conclusions of fact,” he added.

Chief Magistrate Thomas Nzioki, who convicted Lenolkulal, had based the ruling on the breach of public trust, noting that the governor's actions, along with those of his associates, were deliberate and violated the principles of good governance.

“There cannot be any excuse for a governor to trade with his county government. The consequences of such action are dire to the people he is elected to serve. A governor so conflicted will not be keen to give his whole to the people,” Magistrate Nzioki said during the sentencing.

The Milimani Law Courts in Nairobi. (Photo: File)

Lenolkulal, along with his co-accused Hesbon Wachira Ndathi, were fined Sh85.4 million each or, in default, to serve eight years in prison. Both have since been released on a bond of Sh10 million each, pending the outcome of their appeals.

Lenolkulal’s lawyer, Paul Nyamodi, added that the magistrate's decision was flawed, especially after finding that the county government had indeed received and paid for the fuel and lubricants delivered by Oryx Service Station, a business linked to Lenolkulal.

He also argued that the sentencing under Section 48(1)(b) of the ACECA was inappropriate, as there was no loss of public funds.

Nyamodi further highlighted inconsistencies in the case, particularly regarding the amounts of money Lenolkulal is accused of unlawfully acquiring.

The charge sheet indicates that the former governor obtained Sh84.6 million, while data from the Integrated Financial Management Information System (IFMIS) records Sh83.4 million. The lawyer argues that the magistrate's decision to adjust these figures during the trial was unconstitutional.

Furthermore, Lenolkulal maintained that he had relinquished ownership and control of Oryx Service Station as of May 1, 2013, under a lease agreement.

He insisted that the prosecution failed to prove that he personally benefitted from the transactions between the county government and the service station.