Court recommends prosecution of Crossley Holdings directors over Sh2b Miwani Sugar land

NAIROBI, KENYA: Directors of a company accused of irregularly acquiring over 9,000 acres of land belonging to Miwani Sugar Company valued at Sh2 billion can now be prosecuted after a court ruling.

The Court of Appeal overturned the decision of High Court judge Abida Ali Aroni that had blocked the Ethics and Anti Corruption Commission (EACC) and the Director of Public Prosecution (DPP) from prosecuting directors of Crossley Holdings Limited over illegally acquiring 9,394 acres belonging to the sugar miller.

Judges Festus Azangalala, Gatembu Kairu and Sankale Ole Kantai held that the EACC was within its mandate when it investigated and made recommendations for prosecution of the directors and added that the DPP also has powers to charge where public property has been acquired fraudulently.

The High Court in Kisumu delivered the judgment in 2012 where it quashed the reports, findings and decisions of the then Kenya Anti Corruption Authority (KACC) now EACC recommending the arrest and prosecution of Crossley Holdings directors, an advocate and a magistrate.

The high court also prohibited the Attorney General (AG) and DPP from prosecuting the directors of the firm for criminal offences and any other offences arguing that the EACC decision to have the directors charged was irrational and against the constitution.

However, in their verdict the appellate judges set aside the lower court decision, which had insulated the directors and other people involved in the irregular land acquisition from prosecution.

"We have said enough to show that the appeals must succeed. We accordingly allow the appeals, set aside the judgment of the high court and substitute with an order dismissing Crossley motion filed in high court," they ruled.

EACC has conducted an inquiry into allegations of issuance of fraudulent letter of consent and clearance certificate for 9,394 acres of land belonging to Miwani Sugar Company, which is under receivership.

It was alleged that the said parcel of land valued at Sh 2 billion had been fraudulently transferred to Crossley Holdings Limited.

"The Kenya Sugar Board, the debenture holders of the property were organising to sell the property through competitive bidding when they learnt that the same had been sold through a public auction through a purported exercise of a court decree," EACC had submitted.

The investigations, according to the commission unearthed a maze of conspiracies involving an advocate, a magistrate and a number of personalities aimed at ensuring that the ownership of the public property whose value is more than Sh 2 billion passed to Crossley.

A report was compiled and forwarded to the AG recommending prosecution of a number of personalities for various offences, which was accepted by the AG on December 9, 2009.

However, when the prosecution commenced Crossley applied to the court seeking orders to quash the recommendation by the EACC and the AG's decision to prosecute them and further sought orders to prohibit the AG from prosecuting them.

The application, which was supported with a verifying affidavit sworn by Sukhwinder Singh Chathe a director of Crossley, submitted that the company became the owner of the property after legally and properly obtaining a letter of consent and clearance certificate from the authorities.

He argued that the intended prosecution was based on the wrong and false premise that the property was public property when in fact that was not the case.

However the commission and the DPP filed affidavits signed by Stanley Miriti and Geoffrey Obiri respectively and submitted that complaints had been launched that assets of Miwani had been irregularly disposed off.