Ex-Britam staff now risk fresh charges over DPP's inaction in fraud case

Cytonn Investments Chief Executive Edwin Dande and his Acorn Group counterpart Edward Kirathe at a past event. The two, alongside others, are accused of diverting millions of shillings from Britam. (PHOTO: ELVIS OGINA/ STANDARD)

Directors of property development firm Acorn Ltd could be charged afresh in a criminal case that was withdrawn by the complainant more than a year ago.

This is after the the Director of Public Prosecutions (DPP) failed to withdraw criminal charges against the directors even after an out-of-court settlement had been reached.

Diversified financial services company Britam had filed a number of civil and criminal suits in 2014 against Acorn and its former employees Edwin Dande, Elizabeth Nkukuu, Patricia Wanjama and Shiv Arora whom it had accused of fraudulently transferring billions of shillings from its accounts.

The dispute started when Britam went to court, claiming that its former managers fraudulently siphoned billions of shillings from its accounts and channelled them to accounts held by Acorn Ltd and its affiliates.

Future disputes

The parties to the suits later agreed to an out-of-court settlement in which Britam agreed to withdraw the case it had filed against the property developer and registered a consent, which was approved by Justice Mbogholi Msagha.

Under the agreement, the two sides agreed to end their courtroom battles and resolve future disputes through dialogue.

Consequently, Acorn Ltd agreed to return land that had been purchased with funds transferred from Britam, and more than Sh5 billion in cash.

The deal allowed Britam to recover a five-acre land in Kileleshwa, a two-and-half-acre plot in Upper Hill, 25 acres in Mlolongo and 182 acres in Lukenya, Machakos County.

Acorn Ltd also agreed to return to Britam, the mandate to operate various bank accounts and cash balances in relation to some projects they were undertaking.

Britam, for its part, agreed to relinquish its interests in Acorn Group and projects initiated by the firm on Jogoo Road, Baba Dogo, Lavington and Kitengela. Britam also undertook not to pursue any criminal charges against Acorn or any of its directors.

According to correspondence between the Directorate of Criminal Investigations (DCI) and the DPP seen by The Standard on Sunday, the files were forwarded to the DPP’s office in June last year.

It’s still not clear whether the DPP saw them and why he did not act in good time despite the two parties having agreed to a settlement.

The DPP’s office remained silent, prompting another round of prodding.

In December last year, the DCI through the Deputy Director Criminal Investigations Mr John Kariuki wrote to the DPP, reminding him that the file had been sent to him for perusal and advice, which was still being awaited.

“That being the case, there is new development where the complainant (Britam) wants to withdraw the case against Acorn Group Ltd after an out-of-court settlement on several civil suits... considering these new kind of events, we leave it to you for your learned advice on how to deal with the matter,” wrote Mr Kariuki.

Kept charges alive

And again in October this year, Mr Kariuki wrote to DPP enquiring about the file.

“This is to request your good office to forward back the file with your advise assuming it has already been perused,” he wrote.

Failure to act on the file, may see the accused charged in court to answer to charges that had been dropped.

The Standard on Sunday has learned that the DCI may move in and take the four to court as early as next week, following the inaction by the DPP office that has kept the criminal case alive.

In the court documents, Britam had accused the former managers of conspiring to mobilise third parties to contribute to real estate developments undertaken and controlled by the other companies while alleging that they were sanctioned by Britam.

The former managers denied Britam’s allegations and filed another case challenging their prosecution on the grounds that the investigations were “trumped up, mischievous and without any basis.”

According to them, the cases were solely meant to advance Britam’s agenda in the industry since they were party to all agreements signed by the affiliate companies.