Alphonse Munene Mutinda
The High Court has directed city lawyer Alphonse Munene Mutinda to refund over Sh25.9 million that he received more than 15 years ago for the acquisition of cemetery land on behalf of the defunct Nairobi City Council.
Justice Esther Maina of the High Court ruled that the payment to Mr. Mutinda was part of a fraudulent scheme surrounding the controversial purchase of a 120-acre parcel of land in December 2008, for which Sh283 million was disbursed. The land was later deemed unsuitable for use as a cemetery, although the funds had already been distributed among individuals and law firms.
In her ruling, Justice Maina stated that the money received by Mr. Mutinda was obtained through fraudulent means and must be repaid, with annual interest of 12% from the date of payment. She described the cemetery land transaction as a corrupt deal that led to a significant public loss of Sh283 million.
“While the defendant claims the Sh25.9 million was legal fees, the plaintiff (Ethics and Anti-Corruption Commission) successfully demonstrated that the payment was over and above his actual fees as agreed with his client, Henry Kilonzi, the original landowner,” said Justice Maina.
The court found that Mr Mutinda failed to provide any agreement to justify the payment as legal fees. The High Court also noted that the purchase price of the land was grossly inflated, and Mr Mutinda was a direct beneficiary of the fraudulent procurement process.
The EACC had moved to the High Court seeking recovery of the money, arguing it was illegally acquired through a flawed tender process for the land—LR No. 14759/2—intended for a public cemetery. Investigations revealed that out of the Sh283 million, only Sh110 million was paid to the seller, while the rest was syphoned off by various individuals, including Mr Mutinda.
EACC investigator Tabu Lwanga testified that Sh173 million was embezzled through the fraudulent deal. He noted that none of the 12 bidders for the cemetery land met the mandatory requirement of a 1.8-metre soil depth, yet the tender evaluation committee still awarded the contract to Naen Rech Limited.
The High Court heard that two separate sale agreements existed—one between Mr Kilonzi and Naen Rech Limited for Sh110 million and another between the City Council and Naen Rech for Sh283 million. Mr Mutinda’s signature appeared as a witness on the latter agreement.
Justice Maina concluded that Mr. Mutinda’s actions, including authorising the transfer of funds to accounts he controlled, amounted to substantive participation in the fraudulent tender process. The judge dismissed his claims that the payments were legitimate, stating that he lacked proper instructions from the landowner and could not absolve himself of the fraud.
The High Court emphasised that the tender process was marred by forged valuation reports, fake minutes of evaluation committees, and irregular sale agreements. The court also questioned why Naen Rech Limited received only Sh9.5 million from the Sh283 million transaction, terming it further evidence of fraud.
