The Court of Appeal has upheld the conviction of former Nairobi City Council official Alexander Musanga Musee in the cemetery land scandal that also implicated former Town Clerk the late John Gakuo and former Local Government Permanent Secretary Sammy Kirui.

A three-judge bench comprising Justices Patrick Kiage, Weldon Korir and Joel Ngugi dismissed Musee’s appeal, ruling that the case against him had been proved beyond reasonable doubt and that the High Court was right in affirming his conviction.

Musee, who served as the Deputy Director of Procurement and Secretary of the Tender Evaluation Committee, was found guilty of knowingly giving a misleading report to the City Council in connection with the purchase of 120 acres of land in Mavoko for use as a cemetery. The land was later found to be unsuitable for burials.

The case, which dates back to 2008, involved the controversial procurement of land by the then City Council of Nairobi at an inflated cost of KSh283 million.

According to court records, the Evaluation Committee, chaired by Mary Ngethe, the Council’s Director of Legal Affairs, recommended the purchase of land from Naen Rech Limited, claiming it met the specifications for a cemetery. The Tender Committee later approved the award, paving the way for payment.

Investigations by the Ethics and Anti-Corruption Commission (EACC) later revealed that the land was rocky, unsuitable for burials, and grossly overvalued. The actual market value was estimated at about KSh30 million, nearly one-tenth of the purchase price.

Four senior officials—the late John Gakuo, Sammy Kirui, Mary Ngethe, and Alexander Musee—were charged in the Anti-Corruption Court.

Gakuo, a former Nairobi Town Clerk and Kirui, the then Local Government PS, were accused of approving the transaction without due diligence.
While Gakuo died before his appeal could be heard, Kirui was acquitted by the High Court in 2020.

However, both Ngethe and Musee were convicted. Ngethe’s appeal was later withdrawn after she completed her sentence, leaving Musee as the only one still contesting the conviction.

In his latest appeal, Musee argued that the charge was defective and that he was unfairly held responsible for the collective decisions of the committee. He also claimed his right to a fair trial was violated.

But the appellate judges disagreed, finding that Musee “knowingly gave false information” in the committee’s report by stating that the team had unanimously endorsed the land purchase, when in fact some members had objected to it.

“As the secretary of the Evaluation Committee, he was the originator and keeper of the minutes. Any false statement in the minutes was directly attributable to him,” the judges ruled.

The Court of Appeal also dismissed Musee’s claim that he acted in good faith, saying evidence showed he knowingly participated in misleading the City Council. The Court of Appeal also affirmed that the High Court was right to lift the KSh32 million fine that had initially been imposed on him after finding no proof he personally benefited from the deal.