According to the former AG who straddled the legal advisory scene for decades, the E-Cops contract was signed in accordance to the law and was legally binding on the government of Kenya(GoK).
He said his office had been tasked to analyse a draft agreement document with a view to confirm its safeguards against government interests.
Wako said he was aware all monies and promissory notes relating to the contract in question were refunded.
He said his office was in agreement that the contract was in order from the legal aspect.
The top lawyer now turned politician said they were required “to make sure Info-talent was a genuine company with offices in Switzerland ” and had sought Mutual Legal Assistance, engaging top legal minds in the foreign country.
The legal viewpoint
He said his office also advised the Office of the President (OP) to seek Treasury opinion on financial matters relating to the agreement.
Wako said this was procedural as at the time the line ministry that was interested in entering an agreement would discuss with the Ministry of Finance.
Shedding further light into the case, Wako confirmed that when the draft agreement reached his office for sanction it was ready and he tasked Roselyn Amadi who “concluded that the agreement was in order from the legal viewpoint.”
“The agreement was in order from the legal point of view,” said Wako who all defence lawyers declined to cross examine, as if to fortify their claim that the questioned contract, the subject of the court case, was legal and binding under the laws of the land.
He said he advised the government “to proceed upon compliance with our advice above…”
Wako said Joseph Kinyua, then heading treasury later requested him to terminate the agreement.
But from a legal viewpoint Wako explained there was nothing to terminate as all monies and promissory notes were refunded and triggered laughter in the packed courtroom explaining why he never answered Kinyua.
“There was nothing to terminate, the monies had been returned,” Wako said.
Return constitutes cancellation
Asked if whether the contract was terminated formally he said he would not recall.
But he explained that one of his officers advised him that there was no contract to terminate given that the commitment fee that gave validity to the contract had been returned.
“Return constitutes cancellation…” Wako explained.
Wako who in the former order also wielded prosecutorial powers said that also taking into account that the first installment of payments and accompanying promissory notes had been returned also amounting to cancellation as the same as termination.
“Taking into account all these three issues cancellation was same as termination,” Wako told court.
Former AG who resigned Prof Githu Muigai took a few minutes in the stand to confirm receipt of correspondences but was categorical that the senior deputy solicitor general Muthoni Kimani was fully “in charge of the process.”
I had just been appointed and was fairly new in office when I took over…” he said.
Hearing has been adjourned to August 20 2108.