The High Court has declined to stop the State from prosecuting four former Britam employees, over the alleged theft of Sh1billion.
High Court judge John Mativo said that the former employees who are now Cytonn Limited directors Harold Dande, Elizabeth Nkukuu, Shiv Arora and Particia Njeri did to convince the court that charges which were brought against them were out of malice.
Justice John Mativo observed that the Director of Public Prosecution had independently weighed complaint their former employer Britam Limited and pressed the charges based on the evidence he had.
‘It is clear that the investigations were commenced after a complaint was lodges and the trial was commenced with a factual basis after DPP independently evaluated the evidence. I find nothing in this case to suggest that the DPP did not carefully analyse the evidence or acted carelessly or abused his power,” Justice Mativo ruled.
He continued: “I hereby dismiss the applicants motion with no orders as to costs and direct that the Nairobi Chief Magistrates Criminal Case number 1735 of 2016 proceeds to hearing and determination.”
The decision by the judge came after the four moved to block the Director of Public Prosecutions Keriako Tobiko and their former employer from reopening their case following an earlier out-of-court settlement that gave them immunity from future prosecution.
The former Britam employees said they were issued with summons to appear before the Magistrates Court on Thursday, a move they claimed was in bad faith.
Diversified financial services company Britam had filed a number of civil and criminal suits in 2014 against the four former employees 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.
In the out-of-court settlement, Acorn Ltd agreed to return land that had been purchased with funds transferred from Britam, and more than Sh5 billion in cash.
The deal also 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. Yesterday, Mr Amoko told the court the DPP and Britam had nothing to lose by waiting for the Court of Appeal to determine on whether his clients’ rights were breached.
“They intend to prosecute my clients on 10th despite the orders from this court. Everything is tainted. It’s being manipulated by the interested party (Britam). It’s being used to intimidate us,” said Mr Amoko.
“The respondents investigating the issue are abusing their statutory powers at the behest of the interested party. No officer acting consciously would take that action as there is no basis of criminally charging the ex parte applicants.”
The DPP said he had already made a decision to have the four charged, but asked the court to dismiss the new application, saying they were initially challenging arrest and not prosecution.
“That suit was never challenging prosecution, no wonder DPP is not party to it. The suit was complaining about police actions. They are assuming that you gave orders stopping prosecution. If it would have been an issue, the DPP would have been a party,” argued Senior Principal Prosecution Counsel Fredrick Ashimosi.
He said that the Inspector General of Police Joseph Boinett and Directorate of Criminal Investigation Ndegwa Muhoro had no powers to prosecute anyone as had been alleged by the now Cytton Investment directors.
Brtiam through lawyer Fred Ngatia argued that the orders sought would “issue immunity against prosecution.”
He asked the court to allow the criminal justice system to take effect since the same court had already made a finding over the same issue.