It is a big blow to the former National Social Security Fund (NSSF) investments manager Francis Moturi as he loses the appeal against conviction for stealing Sh1.2 billion from the parastatal and the subsequent jail term of 14 years.
Moturi was handed the jail term and an additional Sh2.billion fine in 2022 by Justice Lawrence Mugambi who was then chief magistrate in the anti-corruption court and he appealed.
But the penalties were upheld by Justice Nixon Sifuna of the Anti-Corruption high court who said “this was a mammoth fraud and there is evidence on record from the trial court, sustaining the conviction and I therefore uphold the appellant’s conviction hence this appeal for conviction fails”.
Mugambi further barred Moturi from ever holding a public office forever.
Sifuna said Moturi had a responsibility of safeguarding the funds meant for investments to benefit retirees.
“Instead, in conspiracy with DSL officials they defrauded the fund of such a monumental sum of money thereby throwing the NSSF as an employer and the Kenyan pensioner under the bus,” Sifuna said.
It is criminal liability that arises from both as demonstrated as players in complicity non action and willfulness, and also from being the NSSF’s investments manager and the one who promoted the said scheme and by this, he bears the highest responsibility for the funds.
Sifuna said Moturi’s office as a public officer is one bearing public trust and this action betrayed and caused the NSSF to lose a staggering amount of pensioners’ funds.
The judge said what happened at the NSSF was a premeditated ingeniously conceived and cunningly executed fraud on public funds for pensions in disregard of the fact that pensioners are a vulnerable segment of the society.
“It is disgusting and in his (Moturi’s) complicity, non-action and willfulness, the fund (NSSF) continued to pay periodically, payments for shares that never were and with those payments, getting no shares,” the judge said.
“Shying away from assigning blame for this conduct or penalizing it, can only promote impunity and lack of accountability while doing it is fulfilling a duty under article 10 and 73 of the constitution and other legal provisions under which he was convicted.”
Moturi and the three others had argued that NSSF is not a public body and the funds pilfered were not public funds but Prof. Sifuna said such an argument is unfortunate.
He held that NSSF is a public body and the appellants should not use that as a scapegoat.
Justice Sifuna said the conspiracy charge was properly proven by the office of Director of Public Prosecutions (ODPP).
The appellants had also argued that the case took more than ten years and was therefore a miscarriage of justice.
But Prof Sifuna said the delay cannot be blamed on the court but on adjournments as well as circumstances including high volumes of documents, the number of witnesses that testified in the case – 35, the number of accused persons who were nine as well as the corresponding number of defense lawyers, noting there had to be cross examinations of the witnesses by each lawyer.
Sifuna said the sentence was not excessive and disproportionate as argued and upheld it too.
