In a do or die defence in a packed criminal court in Nairobi, a former national treasurer with the Central Organization of Trade Unions (COTU)  charged with theft for the first time links the combative Secretary General Francis Atwoli to the fictitious account in which  KSh115.5 million benevolent donor funds meant for HIV/AIDS and child labour programmes in the country sunk.

A battery of journalists eager to get an angle for their day’s filing add to the fusion.

I look across the room and also see a man court orderlies once told me is  a  witch-doctor who accompanies certain accused persons, following the proceedings keenly.

Cornel Ogutu is led in his evidence by a youthful defence lawyer and starts to implicate  Atwoli.

He says the COTU Secretary General Atwoli was aware of the funds which was to cater for HIV/AIDS and child labour awareness campaign in the organisation and  was involved in the opening of an account at Barclays Bank which returned to haunt him into the dock.

Ogutu said Atwoli was even a signatory against withdrawals and supported his claims with document copies of which were marked as his defence exhibits.

Parking lot

It was this account that the money was siphoned, the witness said in a simulated  blow by low account on how pre-signed cheques he signed with Atwoli  were used to draw finances long after he had been barred from office through an illegal suspension sanctioned by Atwoli.

“On November 6 2002 I received a call from Atwoli instructing me to meet at (the)  parking lot…in order to open the new account for the money which had been wired to COTU,” he said.

Ogutu said Atwoli instructed him “we open a new account  where the money would be deposited.”

He said on oath  Atwoli fully aware of the alleged fictitious bank account since he participated in the opening of the account using the official details of COTU and they were together  with  his co-accused person project coordinator, Millicent Ngeso, who is charged alongside Ogutu.

Withdraw money

Ogutu and Ngeso have denied stealing Kshs 115 million from Barclays bank of Kenya jointly with others not before court  between  November 21 2002 and  March 28 2013  purporting to have been authorized by COTU accounts signatories.

The court heard that Atwoli used to instruct Ogutu to withdraw money on behalf of the organisation 10 banks accounts since he was a mandatory signatory.

He said that Atwoli has never gone to the bank personally to with draw money on behalf of COTU but instead used to send him.

In his defence he produced copies of pre-signed cheques, in which Atwoli was a signatory and which he claimed were used to withdraw the mone(is).

Not aware of bank account

Atwoli  at one time told the court that Ogutu and Ngeso defrauded the worker’s union and  that
COTU executive board was surprised by the existence of  Barclays Bank of Kenya Queensway branch account number 0942594267 which was to cater for HIV/AIDS and child labour awareness campaign.

He then also took the court through several Barclays Bank cheques which were
allegedly pre-signed by the late COTU Chairman Peter Muthee and the two suspects to withdraw cash.

“The Barclays bank account was opened in the name of COTU but until we received information we were not aware of its existence as all our accounts are with KCB. COTU was also not aware of any transactions made through the said account and it never benefited from the same,” Atwoli was quoted  saying on oath in a section of the media which only amplifies prosecution witness accounts and downplays heated cross- exam in court.

He also confirmed when a defence lawyer cross examined him after his evidence in chief two years ago  that traditionally there are four signatories to the union’s accounts but three were mandatory before any transaction takes place.

“The signatures of the chairman, secretary-general and treasurer are mandatory but in the absence of any of the three the project co-ordinator could sign on there behalf,” the secretary general had said.

Carry out forensics

He said the union immediately contracted an audit firm to carry out  forensics through which it was d discovered that the union had lost KSh114.993,483.45 through the account in question.

COTU boss told court  he assumed office with Ogutu on August 24 2001 but disowned minutes of a meeting held on July 18 2002 at Tom Mboya Labour College in Kisumu which allegedly gave consent for the opening of the account.

He said images of Ogutu and Ngeso  on March 22 2014 were published by the banking fraud unit in the local media before their arrest.

The hearing was adjourned to September 27 2017.