David Koross: Court Rejects Bid to Remove NSSF Boss Over Billions in Audit Queries

Justice Benjamin Musyoki ruled that billions in NSSF audit queries could not establish personal culpability against David Koross. The judge said most disputed transactions predated his May 2023 appointment and required stronger evidence linking him personally.

The High Court has rejected a bid to remove National Social Security Fund boss David Koross over billions in audit queries.

Justice Benjamin Musyoki dismissed a constitutional petition challenging Koross’s continued tenure as NSSF Managing Trustee.

The petition, filed by Francis Awino, accused Koross of presiding over serious financial and governance irregularities.

Awino anchored his case largely on the Auditor-General’s report for the year ending June 30, 2023.

He argued that the audit exposed financial concerns exceeding KSh17.9 billion across several areas.

Those allegations included investments, land acquisitions, procurement, stalled projects, and unpaid member contributions.

But the judge found a critical weakness running through the entire petition.

The evidence raised institutional questions but failed to establish Koross’s personal responsibility for them.

Koross remains NSSF’s Managing Trustee and Chief Executive Officer, according to the Fund’s current records.

Billions Questioned

Awino alleged that NSSF had KSh9 billion in non-performing investments that required accountability.

He further cited KSh4.3 billion in alleged irregular land acquisitions and KSh2.1 billion.

The petition also identified KSh2.5 billion in allegedly stalled or ghost projects.

It additionally alleged that KSh9.5 billion in member contributions had remained unremitted.

Other claims included a KSh215 million unrecovered advance and KSh541 million in rental arrears.

Awino wanted Koross investigated, funds recovered, and his future public service restricted.

He also sought a forensic audit covering NSSF operations between 2020 and 2024.

Yet the judge found several of those figures were not contained within the audit report.

Justice Musyoki specifically said he had not found the pleaded KSh9 billion investment figure.

He similarly found no pleaded audit finding establishing KSh4.3 billion in irregular land acquisitions.

The same problem affected the alleged KSh2.1 billion procurement irregularities and KSh2.5 billion ghost projects.

The court also examined the alleged KSh9.5 billion contribution shortfall.

The Auditor-General had actually identified KSh9.545 billion as long-outstanding contributions receivable.

That figure comprised KSh1.933 billion in mandatory contributions and KSh7.612 billion in penalties.

The judge stressed that this differed materially from alleging Koross had misappropriated KSh9.5 billion.

The audit also identified KSh942 million in contributions held in transit or suspense accounts.

Those balances had accumulated because employers’ banking systems lacked integration with NSSF’s collection system.

The report did not personally attribute those historical reconciliation problems to Koross.

Timing Matters

Koross’s appointment became crucial because he assumed office on May 25, 2023.

The audited financial year had started on July 1, 2022, nearly eleven months earlier.

It ended on June 30, 2023, barely five weeks after Koross took charge.

The respondents therefore argued that many disputed matters predated his appointment.

The judge agreed that the chronology created serious difficulty for personal attribution.

One example involved KSh12.55 million paid for travel services after contract expiry.

Although the payments occurred around Koross’s arrival, evidence did not connect him personally.

“No payment voucher, approval, or other evidence” linked him to those disputed payments.

The court applied similar reasoning to the KSh215.54 million Embakasi Phase VI advance.

That project had existed for years before Koross became Managing Trustee.

The petitioner did not show that Koross created the advance or caused the project to stall.

Neither did the evidence demonstrate that he frustrated efforts to recover the money.

Audit Is Not Guilt

The ruling’s most important finding concerned the difference between audit queries and personal wrongdoing.

Justice Musyoki accepted that the Auditor-General had identified significant concerns requiring accountability.

However, he rejected the suggestion that those concerns automatically established corruption by Koross.

“A qualified opinion is not an acquittal of management from accountability,” the judge observed.

But neither was it a judicial finding that a named officer had committed corruption.

The court said serious orders affecting someone’s career require identifiable personal conduct.

The petitioner therefore needed evidence connecting Koross directly to the alleged constitutional violations.

The judge found no decision personally made by Koross that caused the alleged losses.

There was no payment he authorised that established personal wrongdoing before the court.

Neither was there evidence that he directed questionable procurement or personally benefited.

The court consequently found that Articles 10, 73, 75, 201, and 232 had not been violated.

Awino had also cited earlier allegations concerning Koross’s service at LAPFUND.

However, the court found those allegations rested on public reports rather than established findings.

No adverse judicial, disciplinary, or statutory investigative finding had been presented against Koross.

EACC Bid Fails

Awino also wanted the Ethics and Anti-Corruption Commission to conduct forensic investigations.

He sought a lifestyle audit targeting Koross alongside wider investigations into NSSF operations.

The judge declined, finding no evidence that EACC had improperly failed to act.

Awino had not demonstrated that EACC received a complaint and subsequently refused investigation.

Nor had he shown unexplained inaction after the commission became properly seized of allegations.

The court therefore declined to direct an independent constitutional commission on how investigations should proceed.

It also rejected requests, effectively transforming the High Court into an oversight authority.

Justice Musyoki said parliamentary oversight of NSSF properly belongs to Parliament.

The petitioner could therefore approach Parliament concerning NSSF finances, projects, and management.

Still, the judge made clear that the ruling did not erase the underlying audit concerns.

Those matters remain subject to audit follow-up, recovery proceedings, and parliamentary scrutiny.

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They could also trigger investigations if credible evidence eventually establishes grounds for intervention.

The central failure was the attempt to turn institutional audit concerns into personal constitutional culpability.

“There must be identifiable personal conduct” before such serious constitutional consequences can follow.

The court consequently dismissed Awino’s petition for lack of merit.

Because it was public-interest litigation, however, each party was ordered to bear its own costs.

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