By PEOPLE TRIBUNE REPORTER
A Milimani court has acquitted IT expert Calvin Otieno Ogalo of all charges against him after the prosecution failed to present sufficient evidence linking him to the alleged offences.
Ogalo had faced four counts of conspiracy to commit a felony, being in possession of a firearm and ammunition without a firearm certificate, obtaining registration by false pretences and acquiring uncustomed goods.
He was charged alongside two Kenya Revenue Authority (KRA) employees and seven other suspects over allegations that, between March 1, 2015 and March 1, 2017, they conspired to steal Sh3,985,663,858 from the tax agency.
The prosecution alleged that the money was lost through manipulation of KRA’s electronic systems to remove, vacate or waive tax penalties and outstanding tax debts.
However, the investigating officer, Chief Inspector David Chemitil, conceded under cross-examination that he had no evidence to establish the alleged conspiracy.
Chemitil also told the court that he had no evidence proving that the Sh3.9 billion cited in the charge sheet had actually been stolen.
Milimani Principal Magistrate Carolyne Nyaguthii Mugo further ruled that although the prosecution had established that the firearm allegedly recovered in connection with Ogalo was capable of being fired, it had failed to prove that the weapon was recovered from him.
“There is no sufficient evidence in the proceedings before Court showing the circumstances of recovery of the firearm from the 1st accused, the place of recovery, or any forensic evidence linking him to the firearm or ammunition,” the magistrate ruled.
The case centred largely on alleged manipulation of KRA’s electronic systems, with the prosecution calling several witnesses, including KRA employees, ICT and cybersecurity experts, an arresting officer, a digital forensic examiner, a firearms examiner and a human resources officer.
Two former senior KRA officials also failed to link Ogalo or the other accused persons to the alleged offences.
Ezekiel Saina, a former KRA officer and Commissioner in charge of Corporate Support Services, and Agnes Muthoni Nganga, a former KRA ICT officer, told the court that they had no evidence showing that any of the accused persons had committed the offences or improperly accessed KRA systems.
The then Head of IT, George Muraguru, testified that KRA had discovered malware and other programmes installed on some staff computers.
According to Muraguru, some of the programmes were capable of recording usernames and passwords, while others could be used to manipulate, remove or vacate tax penalties and debts.
Muraguru also testified about a laptop discovered on the third floor of Times Tower that was allegedly connected to remote-access activity.
However, he said he could not link the laptop to any of the accused persons.
He also told the court that he was unaware of any meeting or communication between the accused persons aimed at planning the alleged offences.
Salome Kanyugo, a senior KRA ICT and security officer responsible for information systems security and quality management, told the court that security monitoring had detected suspicious activity emanating from computers associated with KRA employees Lucy Katilo Wamwandu and Kenneth Opere Riaga.
She said investigations had identified applications capable of removing or vacating tax penalties, while key-loggers had been used to capture user credentials.
According to Kanyugo, approximately Sh1.078 billion in penalties were associated with a username attributed to Katilo, while about Sh63 million was linked to a username attributed to Riaga.
However, Kanyugo said she had not recommended criminal prosecution of the two employees at that stage.
Instead, she recommended further investigations because she had not established who introduced the malware or who physically operated the computers.
Despite this, Katilo and Riaga were subsequently found to have a case to answer in separate charges.
Katilo faced a charge of stealing by a person employed in the public service, while Riaga was charged with abuse of office.
The second accused, Alex Mutungi Mutuku, faced a charge of electronic fraud, while David Wambugu was charged with conspiracy to commit a felony.
Edward Kiprop Langat and KRA’s Kenneth Opere Riaga were each charged with abuse of office.
The seventh accused, Omar Ibrahim, the eighth accused, James Mwaniki Gakungu, and the tenth accused, Joseph Kirai Mwangi, each faced one count of conspiracy to commit a felony.
The ninth accused, Gilbert Kiptala Kipkechem, faced two counts—conspiracy to commit a felony and obtaining registration by false pretences.
The prosecution’s case sought to demonstrate how weaknesses in KRA’s electronic systems had allegedly been exploited to interfere with tax penalties and debts.
However, evidence presented in court did not establish a direct link between Ogalo and the alleged manipulation, the firearm or the purported Sh3.9 billion loss.
The court therefore cleared him of the charges after finding that the prosecution had failed to prove its case to the required standard.
