The Respondents have, and continue to, grossly violate constitutional and statutory dictates on integrity in leadership to the detriment of the public interests of the Kenyan people and in defilement of the sanctity of leadership as a public trust.
Despite clear, express and unambiguous constitutional and statutory provisions on conflict of interests in leadership, the Respondents have openly caused and influenced the awarding of the government’s ‘Digital Super-Highway Project’, contracts, to entities directly linked to the 1stRespondent, a Public Officer and chairperson of the 2nd Respondent-the entity responsible for the Digital Super-highway project.
The Digital Super-Highway Project is a project approved by the Cabinet for the benefit of the Kenyan Public. The project aims at: strengthening the country’s ICT infrastructure by increasing the network coverage across the country; reduce cost of internet connectivity and enhance the delivery of e-government services, health services, agricultural services and financial services.
The Kenyan Public is set to benefit from 100,000 Kilometers of fiber cables, 25,000 public hotspots, 1450 Digital Village Smart Hubs and Studios, 3 data centers and data protection and cyber security management all which are expected to be set up should the project be properly and effectively implemented.
The financing of the project is sourced from Universal Service Fund, a fund which is managed by the Communications Authority of Kenya, the 2nd The Project is to be in two phases with the 1stphase apportioned a total of Kenya Shillings Five Billion, Kshs. 5,000,000,000 and the 2nd Phase being apportioned a whopping a total of Kenya Shillings Ten Billion Kshs. 10,000,000,000 from the Universal Service Fund.
Notwithstanding the fact that the Communication Authority, the 2ndRespondent is mandated to administer Universal Service Fund, the Communication Authority entered into an arrangement with the ICT-Authority, the 3rd Respondent through a Deed of Transfer of Procurement Authority. Under this arrangement, the 3rd Respondent was purportedly assigned the Responsibility for facilitation of the rollout of the Optical Fiber Network Connectivity for the Digital Super-Highway Project. This responsibility as per the deed includes the sourcing, contracting and implementation of the project.
Notwithstanding the purported arrangement, the 2ndRespondent retained critical functionalities and involvement in the project. For instance, under article III of the said agreement between the 2nd and the 3rd Respondent: –
Firstly, Financial Responsibility still rests with the 2ndRespondent-the Communications Authority of Kenya. It is the 2nd Respondent that remains responsible for approval of budgets and for allocation of funds in respect to the project.
Secondly, it is the 2ndRespondent that retains the powers to pay the contractors for the project.
Thirdly, the 2ndRespondent is also part of the overall implementation of the project and is in fact part of the project governance as stipulated in article IV of the said agreement.
The 3rd Respondent, acting on the authority of the deed of transfer of procurement authority published various invitation to tender in relation to the Digital Super Highway Project. These include inter alia, TENDER NO. ICTA/OT/11/2022 – 2023 for the Procurement of Digital Super Highway-Last mile And Public Wi-Fi Connectivity on a Three-Year Framework-(Framework Contract) in Lots as well as TENDER NO. ICTA/OT/13/2022-2023 for the Procurement of Digital Super Highway- Backbone and Metro (Framework Contract), in Lots.
The tender documents were expressly clear and unambiguous on who was eligible and who was not eligible for the tender. For instance, part of clause 3.1 of the tender documents provided that ‘Public employees and their close relatives (spouses, children, brothers, sisters and uncles and aunts) are not eligible to participate in the tenders’ Similarly, clause 3.2 disqualified public officers and/or their relatives or entities. Clause 3.3 further in detail disqualified those with conflict of interest from the tender.
Despite this clear, express and unambiguous provisions, as supplemented by constitutional and statutory dictates, the 1st, 2ndand 3rd Respondent caused the awarded of the tender to among others, entities which have a direct link to the 1st Respondent- the Chairperson of the Communications Authority of Kenya.
The entities linked to the 1stRespondent that were awarded the tender by the 3rd Respondent include among others, Nightigale enterprises limited (which has since changed the company name to Nightigale (E.A) Limited) which was awarded the following contracts: –
ICTA/OT/11/2022 – 2023 for the Procurement Of Digital Super Highway-Lastmile And Public Wi-Fi Connectivity On A Three-Year Framework-(Framework Contract) In Lots
ICTA/OT/13/2022-2023 for the Procurement of Digital Super Highway- Backbone and Metro (Framework Contract), In Lots.
Contract for the Provision of OGN OFC Maintenance for Q1 2024-2025 (July-September) for lot 6 Contract No. 2302210 to Nightigale (E.A) valued at 17,983,440.00 signed on 8thOctober 2024.
Contract for Provision of OGN OFC Maintenance for Q4 2023-2024 lot 6 Contract No. 2240177 to Nightigale (E.A) valued at Kshs. 14,383,440.00 signed on 8thJuly 2024
Contract for the Provision of maintenance services for the one government network infrastructure Fibre optic cable on a three-year framework contract /ICTA/OT /10/2022- 2023 awarded to among others Nightigale Enterprises Limited signed on 5thJuly 2023
Contract for the procurement of digital superhighway fiber optic cable and associated accessories (framework contracting Purchaser /ICTA/OT /13/2022- 2023 Nightigale Enterprises 5/06/2023.
Nightigale Enterprises Limited, is an entity directly linked to the 1st This company has had a host of changes on its records at the company’s registry, both in terms of its officials and its shareholding as well as to its name. In terms of the name, the name Nightigale Enterprises Limited has since been changed to Nightigale (E.A) Limited.
In terms of Shareholding, the company has undergone multiple changes, which contextually taken, point to an express intention of fraudulent maneuver aimed at benefiting from contracts with apparent conflict of interest.
For instance, one Evelyn Nyambura Mungai, the daughter of the 1stRespondent, was until the 29th of May 2024, just before the initial contracts were awarded to Nightigale (E.A) Limited, a very strong majority shareholder of the company, holding 70% of the shareholding of the company. One, Thomas Muya Njau held a mere 10% of the shareholding while one, Ruth Waithira Kinyanjui, held a total of 20% of the Shareholding.
Drastically and dramatically, this position on shareholding of Nightigale changed, particularly in the period following the company’s award of the Digital Super-Highway contracts. In the current company shareholding structure, the 1stRespondent’s daughter, Everlyne Nyambura Mungai, once a super majority shareholding is no longer part of the company’s shareholders. Instead, Ruth Waithira Kinyanjui, previously with a mere 20% shareholding, now holds 90% of the Company’s shareholding.
The alteration of Nighitigale (E.A) Limited shareholding structure to omit the 1stRespondent’s daughter only happened in the period after submission of the bids for the Digital Super Highway tender but before the award of the contract. Therefore, beyond peradventure, the only logical conclusion is that the changes to the shareholding structure, were engineered to conceal the real beneficial owners set to benefit following the company’s winning the tenders for the Digital Super-Highway project. That is, the 1st Respondent, through her daughter, Everlyne Nyambura Wanjiru.
In fact, the said Ruth Waithira Kinyanjui is only but a ‘proxy’ of the 1stRespondent and her daughter Everlyn Nyambura Mungai. Everlyne Nyambura Mungai and Ruth Waithira Kinyanjui are not strangers to each other but close business associates/partners/proxies. For instance, apart from Nightgale (E.A), they also carry out business through Nightigale Construction Limited where Everlyn Nyambura Mungai holds 70% of the Shareholding and the said Ruth Waithira Kinyanjui holds 15 % of the Shares.
Despite the above glaring and apparent conflict of interest, the 2ndand 3rd Respondents as the entities responsible for the Digital Super High way project and its procurement, proceeded to award contracts with respect to the project to Nightigale (E.A) Limited, a company directly linked to the 1st This is despite the 2nd and 3rd Respondent’s statutory bound duty to undertake due diligence as part of the public procurement process.
Having been unlawfully awarded the contracts, Nightigale (E.A) Limited continues to purportedly implement the unlawful contracts with respect to government’s Digital Super-highway project.