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Analysis of the TRITON OIL SCANDAL


                                                                              Analysis of the
                                                                       TRITON OIL SCANDAL
                                                                                                                                                     July 2009


                                                                                                            1. Overview
In the wake of the fuel shortage witnessed                                                  to suits by the financiers and defrauded oil
in 2008 and following complaints by oil                                                     marketers. Should existing and other possible
marketers and financiers, the management                                                    suits succeed, KPC will be severely damaged
of Kenya Pipeline Company (KPC) ordered                                                     and ultimately, any losses would have to be
an internal audit of oil stocks in its systems.                                             covered by tax payers.
The audit revealed that stocks amounting
to 126.4 million litres were irregularly and                                                Kenya Pipeline Company serves as the
illegally released to Triton Petroleum Limited                                              backbone of East Africa’s petroleum industry
between November 2007 and November                                                          – it is critical to operations of the oil industry
2008. Triton was not entitled to the stocks,                                                in Kenya, Uganda, Rwanda, Burundi and
nor did financiers authorise the release as                                                 Eastern Democratic Republic of Congo.
required under contractual arrangements.
                                                                                            Besides being a strategic facility, KPC has
The Kenyan taxpayer risks losing over KES                                                   grown to be a significant revenue source to
7.6 billion as a result of the scam as the
                   1
                                                                                            the government - in 2007, it paid KES 2.2
KPC breached an agreement with financiers                                                   billion in direct and indirect taxes leading to
stipulating that financed stocks would only                                                 it being recognised by the Kenya Revenue
be released on the financiers’ authority. KPC                                               Authority as a distinguished tax payer.
also issued false statements regarding those
stocks. The Corporation is therefore exposed                                                KPC has assets of KES 20.2 billion. However,
                                                                                            lack of professionalism and exposure to
     List of Acronyms / Abbreviations                                                       litigation from the financiers makes it a less
                                                                                            attractive investment in the event that the
     CFA            Collateral Financing Arrangements
                                                                                            government would want to privatise it and
     KCB            Kenya Commercial Bank
                                                                                            hinders its ability to raise funds for expansion
     KOSF           Kipevu Oil Storage Facility
     KPC            Kenya Pipeline Company
                                                                                            projects.
     KRA            Kenya Revenue Authority
     Line 1         Capacity Enhancement Project                                            As the Triton oil scandal has unravelled, there
     OTS            Open Tendering System                                                   have been indications that the amount lost
     PPOA           Public Procurement Oversight Authority                                  may have been underestimated:

1
  The amount is arrived at as follows: 126.4 million (litres siphoned off) Multiplied by KES 60(Price per litre) = KES7.584b. The price however during the period
under review varied up to a high of KES 105 per litre.


 1                                                                                                                                                        Permanent Civic Vigilance
Analysis of the TRITON OIL SCANDAL
                                                                                                                                     The Kenya Pipeline Company was
                     •	 The	amount	is	based	on	an	internal	audit	
                                                                                                                             incorporated on 6th September 1973 under the
                             covering the period Nov 2007 to December
                                                                                                                            companies act (Cap 486) and started commercial
                             2008 - it does not cover the period from                                                           operations in 1978. The Company is a State
                             July 2004 when Triton entered into signed                                                            Corporation under the Ministry of Energy
                             a collateral financing agreement with                                                             with 100% government shareholding. Kenya
                             KPC.                                                                                              Pipeline Company operates a pipeline system
                     •	 The	 amount	 is	 calculated	 using	 a	                                                              for transportation of refined petroleum products
                             conservative price of KES 60 per litre, at                                                       from Mombasa to Nairobi and western Kenya
                             a time when the average price was KES                                                                  towns of Nakuru, Kisumu and Eldoret.
                             100
                                                                                                                     •	 Increased	 cost	 of	 doing	 business	 due	 to	
                                                                                                                          the increase in country risk and associated
                     Other claims are arising - for example, KRA
                                                                                                                          higher premiums of access to credit.
                     recently informed banks and receivers who
                                                                                                                     •	 Slowdown	 in	 credit/loan	 approvals	 by	
                     attached Triton’s property of its increased
                                                                                                                          banks affecting future Collateral Financing
                     claim amounting to KES 4 billion in unpaid
                                                                                                                          Arrangements (CFA) as KPC is no longer
                     taxes and penalties by Triton. KRA had in
                                                                                                                          viewed as reliable and credible.
                     January revealed that it was seeking KES 2
                                                                                                                     •	 Limited	 access	 to	 credit	 will	 increase	
                     billion in unpaid corporation taxes for the
                                                                                                                          oligopolistic tendencies in the market,
                     period ending December 2007 and a penalty
                                                                                                                          with the majors – Shell, Total, Caltex,
                     for storage at the Mombasa-based Kipevu Oil
                                                                                                                          Mobil	and	Kenol/Kobil	–	controlling	more	
                     Storage Facility (KOSF). The taxman’s claim is
                                                                                                                          than 80 percent of the market share.
                     linked to the financial year which ended in
                                                                                                                          Small independent players will be locked
                     June 20092.
                                                                                                                          out of the market leading to cartel-like
                                                                                                                          behaviour3.
                     The           scandal            may         have          other         serious
                                                                                                                     •	 Uncertainties	concerning	future	oil	supplies	
                     repercussions in terms of:
                                                                                                                          created by the financing difficulties.


                     2. How did it happen?
                     Kenya’s oil import and trading arrangement is                                                   monthly oil requirements and sells to other
                     based on a complex Open Tendering System                                                        marketers at an agreed price4.
                     (OTS). Under the OTS, which is operated by
                     the Ministry of Energy, oil marketers compete                                                   The import is in some instances guaranteed
                     to import crude and refined products for                                                        by financiers under a Collateral Financing
                     the whole industry. The winner imports the                                                      Agreement (CFA). The CFA arrangement was


                     2
                         http://www.nation.co.ke/business/news/-/1006/516184/-/view/printVersion/-/333j0l/-/index.html accessed on June 4th 2009
                     3
                         High-level crime at Pipeline endangers the whole region Daily Nation January 13th 2009
                     4
                         The logic behind this relates to economies of scale i.e. large volumes allow importer to get lower prices. It also benefits small players unable to import com-
                         mercially viable quantities



Permanent Civic Vigilance                                                                                                                                                                  2
Analysis of the TRITON OIL SCANDAL

introduced in 2004 by KPC in order to enable                                                    Triton) 11.5 percent. Complaints from other
oil marketing companies to use their stock                                                      oil marketers strongly suggest that Triton Ltd
within KPC transport and storage system as                                                      had an undue advantage over other players
security in order to secure financing. Under                                                    in the use of KPC facilities as it reportedly
the scheme, banks issue Letters of Credit                                                       often held stocks that took half the space at
committing themselves to pay 80 percent                                                         KOSF!
of the total cost of the oil imported. In turn,
an oil importer signs an agreement with                                                         The apparent purpose of holding such
KPC stating that oil within the KPC system                                                      huge stocks was to enable Triton to engage
can only be released with the authority                                                         in speculative activities5. During the year,
and instructions of the financiers of the                                                       the price of oil had increased to USD 140
consignment. The agreement also obliges                                                         per barrel. Taking advantage of this price
KPC to release regular statements on stocks                                                     volatility, Triton was able to buy crude oil and
held in trust at agreed intervals to financiers.                                                hold it until prices soared above the buying
Oil marketers would only have access to their                                                   price before disposing of it at a huge profit.
share of the imported oil from KPC on the
written authorisation of the financiers after                                                   The scheme collapsed when oil prices
they have paid for their entitlement.                                                           plummeted to below USD 50 per barrel in
                                                                                                November 2008. The company could not sell
The industry rule is that oil marketers hold                                                    its huge stocks at KOSF and the imported
ullage (storage) space at the Kipevu Oil                                                        consignment at a price that would enable it
Storage Facility (KOSF) in proportion to their                                                  to recover its costs6.
market share which at the end of 2007 stood
as	 follows-	 Kenol/Kobil	 22.4	 percent,	 Shell	                                               As a result, the company started experiencing
21.8 percent, Total 21.2 percent, Chevron                                                       serious difficulties in honouring its financial
13 percent, Oil Libya 7.3 percent, NOCK                                                         obligations to financiers and creditors. It not
2.4 percent and independents (inclusive of                                                      only fell back in payments to these financiers,


         Timeline
         • December 2008: Fuel shortage hits the country.
         •	 December 19, 2008: Triton Petroleum placed under receivership
             KPC MD orders audit and two officials from Operations Dept suspended.
             Audit reveals falsified records
         •		 January 09 2009: KPC Chairman and MD sacked and officials sent on compulsory leave.
         • January 9, 2009: Energy minister instructs KACC to perform audit.
             KCB sues Triton.
         •		 January 14,2009: Petroleum Institute of East Africa - PIEA General Manager George Wachira resigns
         •	 March 2009: Government commissions PWC audit.
         •	 March 4 2009: Kenol wins tender for supply of crude.
         •	 Present: PWC Independent report yet to be released to public




5
    This was reportedly the cause of fuel shortages locally and regionally in Dec 08.
6
    Indications are that the spirited demand by Kenyans for reduction in fuel prices and refusal by other marketers to play ball with Triton contributed significantly to the situation.



    3                                                                                                                                                         Permanent Civic Vigilance
Analysis of the TRITON OIL SCANDAL


                     but was at the same time not able to access                                        Glencore of the UK and Fortis Bank of France)
                     the oil it had ordered.                                                            providing them with false information to the
                                                                                                        effect that all was well and that the stocks
                     Triton Petroleum Ltd won the October 2008                                          were intact8.
                     importation tender for oil that was scheduled
                     to be offloaded in December 2008. The                                              Oil marketers had on several occasions
                     company, though a small player in the oil                                          complained about dealings between Triton
                     industry with a market share of less than                                          and KPC, complaints which went unheeded.
                     1percent, had signed a Collateral Financing                                        Upon realising or suspecting the information
                     Agreement with KPC in July 2004.                                         The       supplied by KPC to be false, the financiers
                     company reportedly imported a consignment                                          responded by directing that no more product
                     of 56,000 metric tons in October 2008 which                                        be released to Triton9.
                     fell short of the monthly requirement of about
                     80,000 tonnes.                                                                     The regional fuel shortage prompted the KPC
                                                                                                        management to order an audit of oil stocks
                     At the time, KPC was reportedly implementing                                       which was to include a reconciliation of
                     an advanced computerised system on product                                         amounts of stocks held in trust on behalf of
                     accounting and stock movement within its                                           respective financiers. It is through this audit
                     network. The implementation was incomplete                                         that the shocking revelation was made that
                     and the system could not provide live data.                                        stocks which ought to have been held in trust
                     Triton, in collusion with KPC staff, appears                                       had been clandestinely released to Triton
                     to have taken advantage of this and come                                           between November 2007 and November
                     up with a scheme that allowed it to draw oil                                       200810.
                     from the KPC system without paying for it.
                     Further, KPC officers clandestinely released                                       Once KPC informed the financiers that
                     126.4 million litres to the company without                                        there were no stocks held in trust for them,
                     the consent of financiers .                7
                                                                                                        One of the main financiers, KCB, moved to
                                                                                                        court and in late December 2008, Triton
                     To achieve this, KPC staff reportedly falsified                                    was put under receivership. By the time it
                     records to show that the stocks were still with                                    went bust, Triton owed financiers KES 7.6
                     KPC and misled the financiers that their stocks                                    billion among them- KCB (owed 1.85b),
                     were intact while they had in fact already been                                    Glencore (2.3b), Fortis of France (906m),
                     released to Triton. Junior KPC officials working                                   and Emirates National Oil Company (2.5b).
                     in the operations department reportedly wrote                                      Its managing director Yagnesh Devani then
                     letters to financiers (Kenya Commercial Bank,                                      reportedly fled the country.11



                     7
                        http://www.eastandard.net/InsidePage.php?id=1144004004&catid=4&a=1
                     8
                        http://www.capitalfm.co.ke/business/Featured/Now-Kenya-Pipeline-tidies-house-2176.html accessed on May 20th 2009
                     9
                        http://www.kbc.co.ke/story.asp?ID=54947 accessed on may 20th 2009
                     10
                         http://www.eastandard.net/InsidePage.php?id=1144004004&cid=4
                     11
                        The case brought by KCB against Triton is pending in court as the two parties attempt to settle out of court.



Permanent Civic Vigilance                                                                                                                              4
Analysis of the TRITON OIL SCANDAL



                                                                 3. Links to Politicians
There is considerable evidence to suggest                                                   The        company’s                past        transactions                with
that Triton enjoyed good political connections                                              the government also tend to support the
which it could have exploited to receive                                                    allegations of links with key political players.
preferential treatment at KPC.                                                              During the regime of President Daniel arap
                                                                                            Moi, Triton clinched the lucrative contract
In addition to holding the OTS for the supply                                               to supply petroleum products to the Kenya
of oil, Triton in partnership with Total Kenya,                                             Power and Lighting Company several times.
held the tender for the provision of petroleum                                              It was the local partner of The Reliance
products to KenGen (up until it was placed                                                  Consortium (led by India’s largest private
under receivership).                                                                        telecom service provider, Reliance Telecoms)
                                                                                            which was poised to take up the second
Triton’s executive chairman and managing                                                    national operator license in 2007 for KES 12
director, Mr. Yagnesh Mohanlal Devani                                                       billion.13
has been described as a shrewd 43 year
old businessman who lives large and                                                         Triton was among the firms named in
hobnobs with the high and mighty. A 2006                                                    Parliament as having received large loans
ceremony to open Triton’s LPG depot was                                                     from Charterhouse Bank in contravention
attended by political bigwigs, including                                                    of banking regulations and in what was
then Vice-President Moody Awori, several                                                    suspected to have been money laundering14.
cabinet ministers, Hon. Raila Odinga, Hon.
Uhuru Kenyatta, and several permanent
secretaries12.

                                                                                                       4. Key Players
4.1 Kenya Pipeline Company
Since its establishment in 1973, KPC has                                                    The former MD George Okungu16 is credited
been linked to several corruption scandals                                                  with turning the fortunes of the company
involving politicians and well-connected                                                    around. In 2006, it was ranked the second
individuals. In 2001 for example, KPC spent                                                 best performing state corporation. George
KES 262.4 m to purchase 32 plots of public                                                  Okungu assumed leadership at a time when
land illegally excised from Ngong Forest and                                                KPC was indebted to the tune of KES 5
irregularly allocated to 13 companies. Four                                                 billion in unpaid taxes and penalties; by 2006
of these companies are reportedly associated                                                KPC was reporting KES 2.1b pre-tax profit in
with Hon. William Ruto, the current Minister                                                2006.
for Agriculture15.
12
   www.nation.co.ke/News/-/1056/514376/-/u19nlk/-/index.html
13
   http://www.bdafrica.com/index.php?Itemid=5810&id=136&option=com_content&task=view
14
   http://www.nation.co.ke/News/-/1056/514370/-/view/printVersion/-/xh4gcez/-/index.html
15
   See KNCHR Report- Unjust Enrichment- The MAKING OF Land Grabbing Millionaires.
16
   Fired after the Triton scandal and currently in court charged with abuse of office due to the disposal of property belonging to the KPC Business Daily February 11
  2009 http://www.businessdailyafrica.com/-/539546/587836/-/8bpr7u/-/index.html
 5                                                                                                                                                       Permanent Civic Vigilance
Analysis of the TRITON OIL SCANDAL


                     Blame for the scandal has tended to be heaped                            Manager of The Petroleum Institute of East
                     on junior officers at the state corporation.                             Africa, said his company had raised the red
                     Both the Energy Ministry and KPC top                                     flag over dealings between Kenya Pipeline
                     officials have maintained that junior clerks                             Company and Triton Petroleum Limited,
                     at KPC’s operations department, especially                               which had gone unheeded17. The PIEA
                     “schedulers” (i.e. those involved in the actual                          managing director was and remains a board
                     release of the product from KPC system),                                 member of Kenya Pipeline Company and
                     were responsible. They also claim that it was                            the oil marketers were of the view that he
                     junior officers who gave false information to                            was not defending their interests in the KPC
                     financiers and falsified records to show the                             board.
                     stocks were available. Two junior staff have
                     reportedly been suspended for alleged direct                             George Okungu, KPC’s Managing Director
                     collusion with Triton.                                                   at the time the malpractices took place,
                                                                                              should be held accountable for the scandal.
                     That such irregularity could go on for nine                              He was sent on compulsory leave while
                     months without the knowledge of top                                      two other officials were reportedly sacked
                     management beggars belief. In the absence                                or suspended by the MD prior to his
                     of collusion in the fraud, the evidence at a                             suspension. The Chairman of the KPC Board
                     minimum points to gross negligence i.e.                                  of directors was also suspended; although
                     neglect of duty of care, or even criminal                                holding oversight it is not clear what role he
                     negligence i.e. fraud or misappropriation by                             may have played in the scandal. The Minister
                     the KPC management.                                                      for Energy Kiraitu Murungi termed it a “a
                                                                                              serious crime of dishonesty and fraud” but to
                     A vital part of the KPC operations is its                                date no criminal charges have been brought
                     product accounting system that enables it                                and Devani has sought to have the criminal
                     to identify products within its system that                              charges against him dropped by settling out
                     belong to a particular oil marketing company                             of court with KCB18.In addition, the Minister
                     or that are under a CFA. If the system was                               offered financiers a guarantee to prevent the
                     operating properly it is hard to fathom how                              financiers suing KPC.19
                     KPC’s internal and external auditors were
                     unable to pick up stock anomalies.                                       4.2 Ministry of Energy
                                                                                              Top officials at the Ministry of Energy, in whose
                     Available information suggests that the top                              docket the oil sector falls, have absolved
                     management were indeed informed of the                                   themselves from blame. Energy Permanent
                     irregularities.	 Kenol/Kobil	 Acting	 Chairman	                          Secretary Patrick Nyoike says he was kept in
                     and Managing Director Jacob Segman, while                                the dark over illegal dealings between KPC
                     calling for the resignation of the General                               and Triton Company. He has nonetheless


                     17
                          http://www.kbc.co.ke/story.asp?ID=54947 accessed on may 20th 2009
                     18
                          http://www.nation.co.ke/News/-/1056/515762/-/u1ag1k/-/index.html/
                     19
                          Ibid



Permanent Civic Vigilance                                                                                                                    6
Analysis of the TRITON OIL SCANDAL


vowed to step aside if implicated in the                                 Triton to speculate by hoarding fuel stocks
scandal. Energy Minister Kiraitu Murungi on                              pending price increase. Neither the Ministry
his part denied any wrongdoing. However,                                 nor KPC acted on this information.
as Minister for Energy, Kiraitu Murungi is
responsible for overall energy policy, and                               When a fuel shortage started to bite, top
should therefore accept political responsibility                         officials at the Ministry of Energy and KPC
for the failures at KPC. KPC as a parastatal                             attributed it to vandalism, power outages,
also falls under his docket.                                             failure by oil marketers to move their stocks
                                                                         fast enough, and panic buying by consumers22.
Hon. Murungi claims that the scam was                                    In light of consequent events, this was a clear
perpetrated by officials of the KPC in cahoots                           misrepresentation by government officials.
with Mr. Yagnesh Devani. He has been at
pains to explain the steps he took to ensure                             4.3 The Energy Regulatory Commission
that those involved in the scam were held                                    (ERC)
accountable and steps taken to forestall such                            The Energy Act, 2006, under which the ERC
occurrences in future including: ordering a full                         was established, lists its objects and functions
forensic audit by PriceWaterhouseCoopers; a                              to include:
probe by Kenya Anti-Corruption Commission                                •	 Regulating	    importation,	   exportation,	
and suspending the KPC Chairman and                                         transportation, refining, storage and sale
Managing Director.                20
                                                                            of petroleum and petroleum products.
                                                                         •	 Protecting	 the	 interests	 of	 consumers,	
Media reports however suggest that officials                                investors and other stakeholders.
at the Ministry of Energy were calling KPCs’                             •	 Monitoring	and	ensuring	implementation	
scheduling office directly with instructions                                and the observance of the principles
to release fuel to preferred oil companies.                                 of fair competition in the energy sector
Reports also indicate that oil marketers                                    in coordination with other statutory
had for a long time complained of criminal                                  authorities;
activities taking place at KPC. Kenol Kobil                              •	 Collecting	and	maintain	energy	data.
for instance is on record as having accused                              Its public interest functions include fighting
KPC of preferentially allowing Triton to take                            against fuel adulteration and dumping,
storage space at KOSF despite its lack of a                              while also ensuring efficient operation of
retail distribution network , which allowed    21
                                                                         petroleum sub-sector.




20
     http://www.nation.co.ke/News/-/1056/541076/-/u324ym/-/index.html
21
     http://www.kbc.co.ke/story.asp?ID=54947 accessed on may 20th 2009
22
     http://www.kpc.co.ke/inside.php?articleid=1




 7                                                                                                          Permanent Civic Vigilance
Analysis of the TRITON OIL SCANDAL


                                                                                                                   grievances over any matter required to be
                     While there is no evidence pointing to the                                                    regulated under the Act. The ERC is yet to
                     direct involvement of ERC in the scam, the                                                    take any action on public reports of the oil
                     Commission clearly failed to discharge its                                                    scandal despite it having a massive impact
                     duty to protect the public interest. The                                                      on the energy sector as a whole.
                     Commission has so far not taken any action
                     in the matter. Its legal mandate empowers it                                                  4.4 Financiers/Bank Staff
                     to ensure fair competition in the market. The                                                 There has been suspicion that staff at
                     complaints by other market players suggest                                                    some banks may have been involved in the
                     that Triton was quite likely engaging in unfair                                               conspiracy through unauthorised signing
                     practices.                                                                                    of letters of release to Triton. Unconfirmed
                                                                                                                   reports indicate that Triton paid bank staff to
                     In addition, Cap 12 Section 6 of the Energy Act                                               turn a blind eye. KCB has reportedly sacked
                     gives the Commission powers to investigate                                                    three officers over the issue23.
                     complaints or disputes between parties with



                     5. Emerging Corruption in KPC
                     In addition to the Triton scandal, the KPC is                                                 extension, and currency fluctuations. KES
                     currently entangled in another controversy                                                    2.1 Billion is hardly marginal as it represent a
                     on its procurement and project management                                                     third of the initial total estimated costs.
                     methods.                                                                                      In addition to the cost variations, the project
                                                                                                                   is still incomplete and the government still
                     This is specifically regarding the Line 1                                                     needs to pump in more funds to ensure
                     (Mombasa – Nairobi) Capacity Enhancement                                                      the intended enhanced pumping capacity
                     Project aimed at increasing the oil pumping                                                   is achieved25. According to the Public
                     capacity between Mombasa and Nairobi                                                          Procurement and Oversight Authority (PPOA),
                     depots at a cost of KES 6.5 billion. Due to                                                   between KES 2 and 3 billion will be lost by
                     what the Energy Minister termed as “a                                                         the completion of this project26.
                     marginal variation of KES 2.1 Billion” the cost
                     variations of the project have raised current                                                 Auditors who probed the Kenya Pipeline’s
                     expenditure on the project to KES 8.6 billion24.                                              Line         1      Capacity             Enhancement                   Project
                     He said the variations were as a result of                                                    identified uncontrolled variations, breach
                     several factors such as price escalations, time                                               of procurement laws, unnecessary trips,


                     23
                          http://www.petrolworld.com/africa-middle-east-headlines/kenya-corruption-at-kpc-exposed-via-triton-petroleum.html
                     24
                          The Minister for Energy stated that contrary to newspaper reports which said that the State Corporation estimated the project cost at KES. 2.5 billion at
                          inception and spent KES. 8.6 billion upon completion, the factual start up figure for the project was KES. 6.5 billion and, at the time of commissioning, the
                          actual estimated cost stood at KES. 8.6 billion. http://www.kpc.co.ke/inside.php?articleid=1
                     25
                          http://www.eastandard.net/InsidePage.php?id=1144017681&catid=159&a=1
                     26
                          http://www.eastandard.net/InsidePage.php?id=1144017633&catid=16&a=1

Permanent Civic Vigilance                                                                                                                                                                      8
Analysis of the TRITON OIL SCANDAL


fictitious claims, inflated costs and unjustified                                             the disguise of unauthorised amendments
expenditures, in what appeared to be                                                          and outright single sourcing at exorbitant
organised graft to fleece the corporation .                                   27
                                                                                              and non –competitive prices”30


The audit, among other findings, indicated                                                    In the contract for building and civil works
that KPC Long Lead Items whose original                                                       within Plant Area awarded to Triple Eight
contract              amount              was         KES1.4             billion,             Construction	Limited/Njuca	Consolidated,	the	
increased astronomically by KES 608 million                                                   original sum of KES 262.6 million was varied
totalling KES 2.085 billion.                                                                  at the cost KES 310 million and attracted price
KPC also purchased small capacity pumps                                                       fluctuation of KES 116.3 million in addition to
than what was originally ordered meaning                                                      other claims totalling KES 982.6 million. The
the oil transporter will ultimately lose KES                                                  auditors stated that the project proceeded
419.2 million in the transaction28.                                                           with the new costs without reference to the
                                                                                              approving authority31.
In a current court case between KPC and
two companies associated with a former                                                        The initial cost of the Triple Eight Construction
MP, Triple Eight Construction Kenya Limited,                                                  Limited tender for site camps was KES 171.3
and Njuca Consolidated Company, KPC                                                           million but was varied by KES 71.5 million,
indicated that it awarded a tender to the                                                     pushing up the cost to KES242.9 million.32
two companies worth KES 262,633,005 but
court documents contradict this stating that                                                  The unfolding of the Line 1 scandal further
KES 685,848,563.74 was paid in excess, in                                                     illustrates the rot at KPC and poor oversight
relation to the said contract .                       29
                                                                                              by the KPC Board. In addition, audit queries
                                                                                              raised by the PPOA have gone unanswered
The KPC claims that its officers and the two                                                  and the Minister‘s statements appear to
companies defrauded the company “through                                                      downplay the queries raised.33




27
      http://www.eastandard.net/InsidePage.php?id=1144017537&cid=4&
28
      Ibid.
29
      Ibid.
30
      http://www.eastandard.net/InsidePage.php?id=1144017704&cid=4&
31
     http://www.eastandard.net/InsidePage.php?id=1144017537&cid=4
32
     Ibid.
33
     http://www.kpc.co.ke/inside.php?articleid=1 The report was said to be a draft and the final report is yet to be released.


 9                                                                                                                                 Permanent Civic Vigilance
Analysis of the TRITON OIL SCANDAL



                     6. Lessons & Conclusions
                     Given its political connections, allegations that                             Devani had reportedly disposed of some of
                     Triton was operating as a corruption conduit                                  these assets, including his matrimonial home
                     involving very senior people at both KPC and                                  in Nairobi’s upmarket Lavington area before
                     the Ministry of Energy appear credible. This                                  fleeing. Given the foregoing, and in light of
                     would explain why there appears to be a                                       the concept of limited liability, it is highly
                     concerted effort to conceal the real reasons                                  likely that some of the claimants may seek
                     behind the fuel shortage. An argument has                                     remedies from other sources. The KPC, as
                     also been put forward that the fraud was                                      a party to the CFA, may then be sued for
                     committed by an oil marketer and that it is                                   breach of trust as its officials appear to have
                     the banks, not the government which have                                      colluded to release oil without approval from
                     been defrauded. The impression created is                                     the financiers.
                     that the public does not stand to lose from
                     this scandal and this despite the fact that                                   As has been pointed out, Kenya Pipeline
                     KPC, a wholly publicly-owned parastatal,                                      Company is seriously exposed to a lawsuit
                     stands exposed to be sued.                                                    by financiers for releasing the oil products
                                                                                                   without their authority. It is also significant
                     This impression has been supported by                                         that Triton did not acknowledge receipt of the
                     Yagnesh Devani’s apparent willingness to                                      126.4 million litres of oil products siphoned-
                     pay the amounts he owes to local banks in                                     off. KPC has already been sued by KCB, Total
                     exchange for a withdrawal of the warrant                                      Kenya as well as Shell. The burden of the
                     of arrest and cases filed against him and the                                 scam may very well eventually be borne by
                     lifting of a receivership over his property. Other                            the taxpayer.
                     recovery efforts include the attachment of a
                     Triton oil storage facility under construction                                Recommendations:
                     in Mombasa                   as security to compensate
                     financiers who lost their money34. KCB                                        •	 Review	the	KPC	internal	risk	management	
                     sought and received court orders freezing all                                    systems
                     Triton assets .       35
                                                                                                   •	 Audit	 all	 KPC	 projects,	 including	
                                                                                                      enhancements of the main line or the
                          It is not clear whether Triton has assets                                   new IT system, the planned laying of a
                     sufficient to meet the amount demanded                                           new line to Uganda and the completion
                     under the various deeds of guarantee and                                         of the KenPipe Plaza.
                     indemnity and to compensate all claims - Mr.                                  •	 Reform	the	sector	to	address	monopolistic	

                     34
                          http://www.eastandard.net/InsidePage.php?id=1144014901&cid=14&j=&m=&d=
                     35
                          Ibid.




Permanent Civic Vigilance                                                                                                                      10
Analysis of the TRITON OIL SCANDAL


     and   oligopolistic     industry   structures.      cartel-like behaviour. The OTS system
     Economic theory predicts that they tend to          should also be made more transparent.
     be inefficient and also exploit consumers.       •	 Urgently	 reform	 CAP	 504,	 Laws	 of	
•	 Release	KACC	reports	on	the	oil	scandal	              Kenya, the Restrictive Trade Practices,
     and prior scandals at KPC to the public             Monopolies, and Price Control Act to
     and prosecute those adversely mentioned.            empower the Monopolies Commission
     It would also be worthwhile to determine            to curtail uncompetitive trade practices in
     why KACC did not prosecute the MD                   the petroleum sector.
     prior to the exposure of this scandal.           •	 Analyse	the	KPC	board’s	review	functions	
•	 Release	the	PWC	audit	report	to	the	public.	          for   major    procurement      projects   to
     This will inform the public and enhance             ascertain whether board failure to carry
     future vigilance over public institutions.          out its oversight responsibility is the result
•	 Release	the	Audit	report	by	the	PPOA	to	              of incompetence, lack of capacity, or
     the public.                                         involvement in fraud.
•	 Address	 the	 inefficient	 fuel	 distribution	     •	 Make	public	the	technical	audit	report	of	
     system. This is epitomised by the outdated          experts from Jomo Kenyatta University
     Mombasa Oil refinery and infrastructure             of Agriculture and Technology on the
     including the pipeline, which has serious           capacity of the Line 1 enhancement.
     capacity constraints.
•	 Review	 the	 oil	 procurement	 system	 with	
     the aim of locking out collusion and




11                                                                                       Permanent Civic Vigilance
Analysis of the TRITON OIL SCANDAL




                     About AfriCOG
                     Africa Centre for Open Governance (AfriCOG) is a civil society organisation
                     dedicated to addressing the structural and institutional causes of corruption and
                     bad governance in Kenya.


                     Africa Centre for Open Governance
                     Kasuku Road, Off Lenana Road next to CVS Plaza
                     P.O. Box 18157-00100, Nairobi, Kenya
                     t:	+254	20	2723031	/	0737	463166,	f:	2714675,
                     email: admin@africog.org
                     www.africog.org



Permanent Civic Vigilance                                                                                12

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TRITON OIL SCANDAL: KENYA PIPELINE COMPANY FACES MASSIVE LOSSES

  • 1. Analysis of the TRITON OIL SCANDAL Analysis of the TRITON OIL SCANDAL July 2009 1. Overview In the wake of the fuel shortage witnessed to suits by the financiers and defrauded oil in 2008 and following complaints by oil marketers. Should existing and other possible marketers and financiers, the management suits succeed, KPC will be severely damaged of Kenya Pipeline Company (KPC) ordered and ultimately, any losses would have to be an internal audit of oil stocks in its systems. covered by tax payers. The audit revealed that stocks amounting to 126.4 million litres were irregularly and Kenya Pipeline Company serves as the illegally released to Triton Petroleum Limited backbone of East Africa’s petroleum industry between November 2007 and November – it is critical to operations of the oil industry 2008. Triton was not entitled to the stocks, in Kenya, Uganda, Rwanda, Burundi and nor did financiers authorise the release as Eastern Democratic Republic of Congo. required under contractual arrangements. Besides being a strategic facility, KPC has The Kenyan taxpayer risks losing over KES grown to be a significant revenue source to 7.6 billion as a result of the scam as the 1 the government - in 2007, it paid KES 2.2 KPC breached an agreement with financiers billion in direct and indirect taxes leading to stipulating that financed stocks would only it being recognised by the Kenya Revenue be released on the financiers’ authority. KPC Authority as a distinguished tax payer. also issued false statements regarding those stocks. The Corporation is therefore exposed KPC has assets of KES 20.2 billion. However, lack of professionalism and exposure to List of Acronyms / Abbreviations litigation from the financiers makes it a less attractive investment in the event that the CFA Collateral Financing Arrangements government would want to privatise it and KCB Kenya Commercial Bank hinders its ability to raise funds for expansion KOSF Kipevu Oil Storage Facility KPC Kenya Pipeline Company projects. KRA Kenya Revenue Authority Line 1 Capacity Enhancement Project As the Triton oil scandal has unravelled, there OTS Open Tendering System have been indications that the amount lost PPOA Public Procurement Oversight Authority may have been underestimated: 1 The amount is arrived at as follows: 126.4 million (litres siphoned off) Multiplied by KES 60(Price per litre) = KES7.584b. The price however during the period under review varied up to a high of KES 105 per litre. 1 Permanent Civic Vigilance
  • 2. Analysis of the TRITON OIL SCANDAL The Kenya Pipeline Company was • The amount is based on an internal audit incorporated on 6th September 1973 under the covering the period Nov 2007 to December companies act (Cap 486) and started commercial 2008 - it does not cover the period from operations in 1978. The Company is a State July 2004 when Triton entered into signed Corporation under the Ministry of Energy a collateral financing agreement with with 100% government shareholding. Kenya KPC. Pipeline Company operates a pipeline system • The amount is calculated using a for transportation of refined petroleum products conservative price of KES 60 per litre, at from Mombasa to Nairobi and western Kenya a time when the average price was KES towns of Nakuru, Kisumu and Eldoret. 100 • Increased cost of doing business due to the increase in country risk and associated Other claims are arising - for example, KRA higher premiums of access to credit. recently informed banks and receivers who • Slowdown in credit/loan approvals by attached Triton’s property of its increased banks affecting future Collateral Financing claim amounting to KES 4 billion in unpaid Arrangements (CFA) as KPC is no longer taxes and penalties by Triton. KRA had in viewed as reliable and credible. January revealed that it was seeking KES 2 • Limited access to credit will increase billion in unpaid corporation taxes for the oligopolistic tendencies in the market, period ending December 2007 and a penalty with the majors – Shell, Total, Caltex, for storage at the Mombasa-based Kipevu Oil Mobil and Kenol/Kobil – controlling more Storage Facility (KOSF). The taxman’s claim is than 80 percent of the market share. linked to the financial year which ended in Small independent players will be locked June 20092. out of the market leading to cartel-like behaviour3. The scandal may have other serious • Uncertainties concerning future oil supplies repercussions in terms of: created by the financing difficulties. 2. How did it happen? Kenya’s oil import and trading arrangement is monthly oil requirements and sells to other based on a complex Open Tendering System marketers at an agreed price4. (OTS). Under the OTS, which is operated by the Ministry of Energy, oil marketers compete The import is in some instances guaranteed to import crude and refined products for by financiers under a Collateral Financing the whole industry. The winner imports the Agreement (CFA). The CFA arrangement was 2 http://www.nation.co.ke/business/news/-/1006/516184/-/view/printVersion/-/333j0l/-/index.html accessed on June 4th 2009 3 High-level crime at Pipeline endangers the whole region Daily Nation January 13th 2009 4 The logic behind this relates to economies of scale i.e. large volumes allow importer to get lower prices. It also benefits small players unable to import com- mercially viable quantities Permanent Civic Vigilance 2
  • 3. Analysis of the TRITON OIL SCANDAL introduced in 2004 by KPC in order to enable Triton) 11.5 percent. Complaints from other oil marketing companies to use their stock oil marketers strongly suggest that Triton Ltd within KPC transport and storage system as had an undue advantage over other players security in order to secure financing. Under in the use of KPC facilities as it reportedly the scheme, banks issue Letters of Credit often held stocks that took half the space at committing themselves to pay 80 percent KOSF! of the total cost of the oil imported. In turn, an oil importer signs an agreement with The apparent purpose of holding such KPC stating that oil within the KPC system huge stocks was to enable Triton to engage can only be released with the authority in speculative activities5. During the year, and instructions of the financiers of the the price of oil had increased to USD 140 consignment. The agreement also obliges per barrel. Taking advantage of this price KPC to release regular statements on stocks volatility, Triton was able to buy crude oil and held in trust at agreed intervals to financiers. hold it until prices soared above the buying Oil marketers would only have access to their price before disposing of it at a huge profit. share of the imported oil from KPC on the written authorisation of the financiers after The scheme collapsed when oil prices they have paid for their entitlement. plummeted to below USD 50 per barrel in November 2008. The company could not sell The industry rule is that oil marketers hold its huge stocks at KOSF and the imported ullage (storage) space at the Kipevu Oil consignment at a price that would enable it Storage Facility (KOSF) in proportion to their to recover its costs6. market share which at the end of 2007 stood as follows- Kenol/Kobil 22.4 percent, Shell As a result, the company started experiencing 21.8 percent, Total 21.2 percent, Chevron serious difficulties in honouring its financial 13 percent, Oil Libya 7.3 percent, NOCK obligations to financiers and creditors. It not 2.4 percent and independents (inclusive of only fell back in payments to these financiers, Timeline • December 2008: Fuel shortage hits the country. • December 19, 2008: Triton Petroleum placed under receivership KPC MD orders audit and two officials from Operations Dept suspended. Audit reveals falsified records • January 09 2009: KPC Chairman and MD sacked and officials sent on compulsory leave. • January 9, 2009: Energy minister instructs KACC to perform audit. KCB sues Triton. • January 14,2009: Petroleum Institute of East Africa - PIEA General Manager George Wachira resigns • March 2009: Government commissions PWC audit. • March 4 2009: Kenol wins tender for supply of crude. • Present: PWC Independent report yet to be released to public 5 This was reportedly the cause of fuel shortages locally and regionally in Dec 08. 6 Indications are that the spirited demand by Kenyans for reduction in fuel prices and refusal by other marketers to play ball with Triton contributed significantly to the situation. 3 Permanent Civic Vigilance
  • 4. Analysis of the TRITON OIL SCANDAL but was at the same time not able to access Glencore of the UK and Fortis Bank of France) the oil it had ordered. providing them with false information to the effect that all was well and that the stocks Triton Petroleum Ltd won the October 2008 were intact8. importation tender for oil that was scheduled to be offloaded in December 2008. The Oil marketers had on several occasions company, though a small player in the oil complained about dealings between Triton industry with a market share of less than and KPC, complaints which went unheeded. 1percent, had signed a Collateral Financing Upon realising or suspecting the information Agreement with KPC in July 2004. The supplied by KPC to be false, the financiers company reportedly imported a consignment responded by directing that no more product of 56,000 metric tons in October 2008 which be released to Triton9. fell short of the monthly requirement of about 80,000 tonnes. The regional fuel shortage prompted the KPC management to order an audit of oil stocks At the time, KPC was reportedly implementing which was to include a reconciliation of an advanced computerised system on product amounts of stocks held in trust on behalf of accounting and stock movement within its respective financiers. It is through this audit network. The implementation was incomplete that the shocking revelation was made that and the system could not provide live data. stocks which ought to have been held in trust Triton, in collusion with KPC staff, appears had been clandestinely released to Triton to have taken advantage of this and come between November 2007 and November up with a scheme that allowed it to draw oil 200810. from the KPC system without paying for it. Further, KPC officers clandestinely released Once KPC informed the financiers that 126.4 million litres to the company without there were no stocks held in trust for them, the consent of financiers . 7 One of the main financiers, KCB, moved to court and in late December 2008, Triton To achieve this, KPC staff reportedly falsified was put under receivership. By the time it records to show that the stocks were still with went bust, Triton owed financiers KES 7.6 KPC and misled the financiers that their stocks billion among them- KCB (owed 1.85b), were intact while they had in fact already been Glencore (2.3b), Fortis of France (906m), released to Triton. Junior KPC officials working and Emirates National Oil Company (2.5b). in the operations department reportedly wrote Its managing director Yagnesh Devani then letters to financiers (Kenya Commercial Bank, reportedly fled the country.11 7 http://www.eastandard.net/InsidePage.php?id=1144004004&catid=4&a=1 8 http://www.capitalfm.co.ke/business/Featured/Now-Kenya-Pipeline-tidies-house-2176.html accessed on May 20th 2009 9 http://www.kbc.co.ke/story.asp?ID=54947 accessed on may 20th 2009 10 http://www.eastandard.net/InsidePage.php?id=1144004004&cid=4 11 The case brought by KCB against Triton is pending in court as the two parties attempt to settle out of court. Permanent Civic Vigilance 4
  • 5. Analysis of the TRITON OIL SCANDAL 3. Links to Politicians There is considerable evidence to suggest The company’s past transactions with that Triton enjoyed good political connections the government also tend to support the which it could have exploited to receive allegations of links with key political players. preferential treatment at KPC. During the regime of President Daniel arap Moi, Triton clinched the lucrative contract In addition to holding the OTS for the supply to supply petroleum products to the Kenya of oil, Triton in partnership with Total Kenya, Power and Lighting Company several times. held the tender for the provision of petroleum It was the local partner of The Reliance products to KenGen (up until it was placed Consortium (led by India’s largest private under receivership). telecom service provider, Reliance Telecoms) which was poised to take up the second Triton’s executive chairman and managing national operator license in 2007 for KES 12 director, Mr. Yagnesh Mohanlal Devani billion.13 has been described as a shrewd 43 year old businessman who lives large and Triton was among the firms named in hobnobs with the high and mighty. A 2006 Parliament as having received large loans ceremony to open Triton’s LPG depot was from Charterhouse Bank in contravention attended by political bigwigs, including of banking regulations and in what was then Vice-President Moody Awori, several suspected to have been money laundering14. cabinet ministers, Hon. Raila Odinga, Hon. Uhuru Kenyatta, and several permanent secretaries12. 4. Key Players 4.1 Kenya Pipeline Company Since its establishment in 1973, KPC has The former MD George Okungu16 is credited been linked to several corruption scandals with turning the fortunes of the company involving politicians and well-connected around. In 2006, it was ranked the second individuals. In 2001 for example, KPC spent best performing state corporation. George KES 262.4 m to purchase 32 plots of public Okungu assumed leadership at a time when land illegally excised from Ngong Forest and KPC was indebted to the tune of KES 5 irregularly allocated to 13 companies. Four billion in unpaid taxes and penalties; by 2006 of these companies are reportedly associated KPC was reporting KES 2.1b pre-tax profit in with Hon. William Ruto, the current Minister 2006. for Agriculture15. 12 www.nation.co.ke/News/-/1056/514376/-/u19nlk/-/index.html 13 http://www.bdafrica.com/index.php?Itemid=5810&id=136&option=com_content&task=view 14 http://www.nation.co.ke/News/-/1056/514370/-/view/printVersion/-/xh4gcez/-/index.html 15 See KNCHR Report- Unjust Enrichment- The MAKING OF Land Grabbing Millionaires. 16 Fired after the Triton scandal and currently in court charged with abuse of office due to the disposal of property belonging to the KPC Business Daily February 11 2009 http://www.businessdailyafrica.com/-/539546/587836/-/8bpr7u/-/index.html 5 Permanent Civic Vigilance
  • 6. Analysis of the TRITON OIL SCANDAL Blame for the scandal has tended to be heaped Manager of The Petroleum Institute of East on junior officers at the state corporation. Africa, said his company had raised the red Both the Energy Ministry and KPC top flag over dealings between Kenya Pipeline officials have maintained that junior clerks Company and Triton Petroleum Limited, at KPC’s operations department, especially which had gone unheeded17. The PIEA “schedulers” (i.e. those involved in the actual managing director was and remains a board release of the product from KPC system), member of Kenya Pipeline Company and were responsible. They also claim that it was the oil marketers were of the view that he junior officers who gave false information to was not defending their interests in the KPC financiers and falsified records to show the board. stocks were available. Two junior staff have reportedly been suspended for alleged direct George Okungu, KPC’s Managing Director collusion with Triton. at the time the malpractices took place, should be held accountable for the scandal. That such irregularity could go on for nine He was sent on compulsory leave while months without the knowledge of top two other officials were reportedly sacked management beggars belief. In the absence or suspended by the MD prior to his of collusion in the fraud, the evidence at a suspension. The Chairman of the KPC Board minimum points to gross negligence i.e. of directors was also suspended; although neglect of duty of care, or even criminal holding oversight it is not clear what role he negligence i.e. fraud or misappropriation by may have played in the scandal. The Minister the KPC management. for Energy Kiraitu Murungi termed it a “a serious crime of dishonesty and fraud” but to A vital part of the KPC operations is its date no criminal charges have been brought product accounting system that enables it and Devani has sought to have the criminal to identify products within its system that charges against him dropped by settling out belong to a particular oil marketing company of court with KCB18.In addition, the Minister or that are under a CFA. If the system was offered financiers a guarantee to prevent the operating properly it is hard to fathom how financiers suing KPC.19 KPC’s internal and external auditors were unable to pick up stock anomalies. 4.2 Ministry of Energy Top officials at the Ministry of Energy, in whose Available information suggests that the top docket the oil sector falls, have absolved management were indeed informed of the themselves from blame. Energy Permanent irregularities. Kenol/Kobil Acting Chairman Secretary Patrick Nyoike says he was kept in and Managing Director Jacob Segman, while the dark over illegal dealings between KPC calling for the resignation of the General and Triton Company. He has nonetheless 17 http://www.kbc.co.ke/story.asp?ID=54947 accessed on may 20th 2009 18 http://www.nation.co.ke/News/-/1056/515762/-/u1ag1k/-/index.html/ 19 Ibid Permanent Civic Vigilance 6
  • 7. Analysis of the TRITON OIL SCANDAL vowed to step aside if implicated in the Triton to speculate by hoarding fuel stocks scandal. Energy Minister Kiraitu Murungi on pending price increase. Neither the Ministry his part denied any wrongdoing. However, nor KPC acted on this information. as Minister for Energy, Kiraitu Murungi is responsible for overall energy policy, and When a fuel shortage started to bite, top should therefore accept political responsibility officials at the Ministry of Energy and KPC for the failures at KPC. KPC as a parastatal attributed it to vandalism, power outages, also falls under his docket. failure by oil marketers to move their stocks fast enough, and panic buying by consumers22. Hon. Murungi claims that the scam was In light of consequent events, this was a clear perpetrated by officials of the KPC in cahoots misrepresentation by government officials. with Mr. Yagnesh Devani. He has been at pains to explain the steps he took to ensure 4.3 The Energy Regulatory Commission that those involved in the scam were held (ERC) accountable and steps taken to forestall such The Energy Act, 2006, under which the ERC occurrences in future including: ordering a full was established, lists its objects and functions forensic audit by PriceWaterhouseCoopers; a to include: probe by Kenya Anti-Corruption Commission • Regulating importation, exportation, and suspending the KPC Chairman and transportation, refining, storage and sale Managing Director. 20 of petroleum and petroleum products. • Protecting the interests of consumers, Media reports however suggest that officials investors and other stakeholders. at the Ministry of Energy were calling KPCs’ • Monitoring and ensuring implementation scheduling office directly with instructions and the observance of the principles to release fuel to preferred oil companies. of fair competition in the energy sector Reports also indicate that oil marketers in coordination with other statutory had for a long time complained of criminal authorities; activities taking place at KPC. Kenol Kobil • Collecting and maintain energy data. for instance is on record as having accused Its public interest functions include fighting KPC of preferentially allowing Triton to take against fuel adulteration and dumping, storage space at KOSF despite its lack of a while also ensuring efficient operation of retail distribution network , which allowed 21 petroleum sub-sector. 20 http://www.nation.co.ke/News/-/1056/541076/-/u324ym/-/index.html 21 http://www.kbc.co.ke/story.asp?ID=54947 accessed on may 20th 2009 22 http://www.kpc.co.ke/inside.php?articleid=1 7 Permanent Civic Vigilance
  • 8. Analysis of the TRITON OIL SCANDAL grievances over any matter required to be While there is no evidence pointing to the regulated under the Act. The ERC is yet to direct involvement of ERC in the scam, the take any action on public reports of the oil Commission clearly failed to discharge its scandal despite it having a massive impact duty to protect the public interest. The on the energy sector as a whole. Commission has so far not taken any action in the matter. Its legal mandate empowers it 4.4 Financiers/Bank Staff to ensure fair competition in the market. The There has been suspicion that staff at complaints by other market players suggest some banks may have been involved in the that Triton was quite likely engaging in unfair conspiracy through unauthorised signing practices. of letters of release to Triton. Unconfirmed reports indicate that Triton paid bank staff to In addition, Cap 12 Section 6 of the Energy Act turn a blind eye. KCB has reportedly sacked gives the Commission powers to investigate three officers over the issue23. complaints or disputes between parties with 5. Emerging Corruption in KPC In addition to the Triton scandal, the KPC is extension, and currency fluctuations. KES currently entangled in another controversy 2.1 Billion is hardly marginal as it represent a on its procurement and project management third of the initial total estimated costs. methods. In addition to the cost variations, the project is still incomplete and the government still This is specifically regarding the Line 1 needs to pump in more funds to ensure (Mombasa – Nairobi) Capacity Enhancement the intended enhanced pumping capacity Project aimed at increasing the oil pumping is achieved25. According to the Public capacity between Mombasa and Nairobi Procurement and Oversight Authority (PPOA), depots at a cost of KES 6.5 billion. Due to between KES 2 and 3 billion will be lost by what the Energy Minister termed as “a the completion of this project26. marginal variation of KES 2.1 Billion” the cost variations of the project have raised current Auditors who probed the Kenya Pipeline’s expenditure on the project to KES 8.6 billion24. Line 1 Capacity Enhancement Project He said the variations were as a result of identified uncontrolled variations, breach several factors such as price escalations, time of procurement laws, unnecessary trips, 23 http://www.petrolworld.com/africa-middle-east-headlines/kenya-corruption-at-kpc-exposed-via-triton-petroleum.html 24 The Minister for Energy stated that contrary to newspaper reports which said that the State Corporation estimated the project cost at KES. 2.5 billion at inception and spent KES. 8.6 billion upon completion, the factual start up figure for the project was KES. 6.5 billion and, at the time of commissioning, the actual estimated cost stood at KES. 8.6 billion. http://www.kpc.co.ke/inside.php?articleid=1 25 http://www.eastandard.net/InsidePage.php?id=1144017681&catid=159&a=1 26 http://www.eastandard.net/InsidePage.php?id=1144017633&catid=16&a=1 Permanent Civic Vigilance 8
  • 9. Analysis of the TRITON OIL SCANDAL fictitious claims, inflated costs and unjustified the disguise of unauthorised amendments expenditures, in what appeared to be and outright single sourcing at exorbitant organised graft to fleece the corporation . 27 and non –competitive prices”30 The audit, among other findings, indicated In the contract for building and civil works that KPC Long Lead Items whose original within Plant Area awarded to Triple Eight contract amount was KES1.4 billion, Construction Limited/Njuca Consolidated, the increased astronomically by KES 608 million original sum of KES 262.6 million was varied totalling KES 2.085 billion. at the cost KES 310 million and attracted price KPC also purchased small capacity pumps fluctuation of KES 116.3 million in addition to than what was originally ordered meaning other claims totalling KES 982.6 million. The the oil transporter will ultimately lose KES auditors stated that the project proceeded 419.2 million in the transaction28. with the new costs without reference to the approving authority31. In a current court case between KPC and two companies associated with a former The initial cost of the Triple Eight Construction MP, Triple Eight Construction Kenya Limited, Limited tender for site camps was KES 171.3 and Njuca Consolidated Company, KPC million but was varied by KES 71.5 million, indicated that it awarded a tender to the pushing up the cost to KES242.9 million.32 two companies worth KES 262,633,005 but court documents contradict this stating that The unfolding of the Line 1 scandal further KES 685,848,563.74 was paid in excess, in illustrates the rot at KPC and poor oversight relation to the said contract . 29 by the KPC Board. In addition, audit queries raised by the PPOA have gone unanswered The KPC claims that its officers and the two and the Minister‘s statements appear to companies defrauded the company “through downplay the queries raised.33 27 http://www.eastandard.net/InsidePage.php?id=1144017537&cid=4& 28 Ibid. 29 Ibid. 30 http://www.eastandard.net/InsidePage.php?id=1144017704&cid=4& 31 http://www.eastandard.net/InsidePage.php?id=1144017537&cid=4 32 Ibid. 33 http://www.kpc.co.ke/inside.php?articleid=1 The report was said to be a draft and the final report is yet to be released. 9 Permanent Civic Vigilance
  • 10. Analysis of the TRITON OIL SCANDAL 6. Lessons & Conclusions Given its political connections, allegations that Devani had reportedly disposed of some of Triton was operating as a corruption conduit these assets, including his matrimonial home involving very senior people at both KPC and in Nairobi’s upmarket Lavington area before the Ministry of Energy appear credible. This fleeing. Given the foregoing, and in light of would explain why there appears to be a the concept of limited liability, it is highly concerted effort to conceal the real reasons likely that some of the claimants may seek behind the fuel shortage. An argument has remedies from other sources. The KPC, as also been put forward that the fraud was a party to the CFA, may then be sued for committed by an oil marketer and that it is breach of trust as its officials appear to have the banks, not the government which have colluded to release oil without approval from been defrauded. The impression created is the financiers. that the public does not stand to lose from this scandal and this despite the fact that As has been pointed out, Kenya Pipeline KPC, a wholly publicly-owned parastatal, Company is seriously exposed to a lawsuit stands exposed to be sued. by financiers for releasing the oil products without their authority. It is also significant This impression has been supported by that Triton did not acknowledge receipt of the Yagnesh Devani’s apparent willingness to 126.4 million litres of oil products siphoned- pay the amounts he owes to local banks in off. KPC has already been sued by KCB, Total exchange for a withdrawal of the warrant Kenya as well as Shell. The burden of the of arrest and cases filed against him and the scam may very well eventually be borne by lifting of a receivership over his property. Other the taxpayer. recovery efforts include the attachment of a Triton oil storage facility under construction Recommendations: in Mombasa as security to compensate financiers who lost their money34. KCB • Review the KPC internal risk management sought and received court orders freezing all systems Triton assets . 35 • Audit all KPC projects, including enhancements of the main line or the It is not clear whether Triton has assets new IT system, the planned laying of a sufficient to meet the amount demanded new line to Uganda and the completion under the various deeds of guarantee and of the KenPipe Plaza. indemnity and to compensate all claims - Mr. • Reform the sector to address monopolistic 34 http://www.eastandard.net/InsidePage.php?id=1144014901&cid=14&j=&m=&d= 35 Ibid. Permanent Civic Vigilance 10
  • 11. Analysis of the TRITON OIL SCANDAL and oligopolistic industry structures. cartel-like behaviour. The OTS system Economic theory predicts that they tend to should also be made more transparent. be inefficient and also exploit consumers. • Urgently reform CAP 504, Laws of • Release KACC reports on the oil scandal Kenya, the Restrictive Trade Practices, and prior scandals at KPC to the public Monopolies, and Price Control Act to and prosecute those adversely mentioned. empower the Monopolies Commission It would also be worthwhile to determine to curtail uncompetitive trade practices in why KACC did not prosecute the MD the petroleum sector. prior to the exposure of this scandal. • Analyse the KPC board’s review functions • Release the PWC audit report to the public. for major procurement projects to This will inform the public and enhance ascertain whether board failure to carry future vigilance over public institutions. out its oversight responsibility is the result • Release the Audit report by the PPOA to of incompetence, lack of capacity, or the public. involvement in fraud. • Address the inefficient fuel distribution • Make public the technical audit report of system. This is epitomised by the outdated experts from Jomo Kenyatta University Mombasa Oil refinery and infrastructure of Agriculture and Technology on the including the pipeline, which has serious capacity of the Line 1 enhancement. capacity constraints. • Review the oil procurement system with the aim of locking out collusion and 11 Permanent Civic Vigilance
  • 12. Analysis of the TRITON OIL SCANDAL About AfriCOG Africa Centre for Open Governance (AfriCOG) is a civil society organisation dedicated to addressing the structural and institutional causes of corruption and bad governance in Kenya. Africa Centre for Open Governance Kasuku Road, Off Lenana Road next to CVS Plaza P.O. Box 18157-00100, Nairobi, Kenya t: +254 20 2723031 / 0737 463166, f: 2714675, email: admin@africog.org www.africog.org Permanent Civic Vigilance 12