A former National Social Security Fund (NSSF) investment manager who was jailed for 14 years in 2022 over the loss of Sh1.2 billion at the fund will serve the remainder of his sentence after the High Court dismissed his appeal.

High Court judge Nixon Sifuna upheld the sentence imposed on Francis Zuriels Moturi, who was found guilty of two fraud-related charges, stating that the sentence was proper given the seriousness of the offence.

Mr Moturi was given the option of paying a fine of Sh2.4 billion for the offence of conspiracy to defraud and deceive. One of the verdicts imposed is a mandatory sentence of a fine that is equal to twice the amount that was lost as per Section 48(2)(a) of the Anti-Corruption and Economic Crimes Act.

“From the foregoing analysis, I find that the prosecution discharged its burden and proved the case beyond any reasonable doubt. I also find that the sentences imposed were neither unreasonable, excessive, harsh, nor illegal,” said the judge.

The judge also dismissed the appeals by the former executive director of Discount Securities Ltd (DSL), David Murungu Githaiga, Wilfred Munyoro Weru (a former finance director at DSL), and Isaac Nyakundi, a former investment manager of the collapsed firm. The three were fined Sh800 million each, or 14 years in jail after they were found guilty of fraudulent acquisition of public funds and conspiracy to defraud.

“I find that there was enough evidence to sustain the conviction, and the appellants were properly convicted. The appeal on the conviction and the sentence, therefore, fails,” said Prof Sifuna.

The court had directed NSSF to recover Sh4.8 billion from the statutory manager of the fund, which was placed under liquidation after finding that the convicts conspired to defraud NSSF through DSL through the purchase of ghost shares.

Moturi, 73, had appealed the conviction and the sentence, arguing that the charges were defective.

He also submitted that the charges were not proved beyond any reasonable doubt as the evidence was not sufficient to sustain a conviction.

Moturi also said there was a variance between the amount stated in the charge sheet and when he was convicted.

However, Justice Sifuna dismissed his argument, saying not every minor error would amount to an actionable defect and that courts are called to determine cases on merit rather than lofty procedures.

“I do not find the charges to be defective at all. The particulars have stated clearly who committed what, where and when, and the amount lost,” he said.

The prosecution led by Caroline Kimiri said Moturi wrote several memos stating that DSL had purchased shares worth Sh1.2 billion on behalf of NSSF at the Nairobi Securities Exchange. She said the information he gave the board of trustees was willful and misleading.

“I have found that there was fraud by a public official in concert with directors of DSL who need to learn painfully to respect public funds and restrain themselves from misappropriating public funds,” said the judge.

The fraud was discovered after NSSF engaged a consultant.

Although Moturi said the decision to invest the funds was made by the board of trustees, the judge said that as the investment manager, he was the one who came up with the idea and convinced the board of trustees to find it viable and endorse it.