The Court of Appeal has declined to stop the State from prosecuting four former employees of financial services firm Britam over a Sh1 billion saga.
The judges ruled that the four, who are now directors of Cytonn Investments - Edwin Dande, Elizabeth Nkukuu, Shiv Arora and Particia Njeri - did not convince the court that the charges which were brought against them were out of malice.
“We find no fault in this reasoning and the order of the court that the criminal case to proceed to hearing and determination since the decision to charge them was independent and was arrived at after the DCI carried out thorough and independent investigations,” said justices Asike Makhandia, Mumbi Ngugi and Pauline Nyamweya.
“The first respondent (DPP Noordin Haji) on independently reviewing the evidence was satisfied that there was sufficient evidence to prefer the charges against the appellants. In the result we are satisfied that the appeal is devoid of merit.”
The four moved to the Court of Appeal after High Court Judge John Mativo threw out their case.
At the heart of the case were funds that had been transferred to three companies; Acorn Properties Ltd, Acorn Investments Ltd and Acorn Group Ltd.
Mr Dande, now Cytonn CEO, and his co-accused claimed their former employer Britam lodged a complaint with the Directorate of Criminal Investigations in a plot to ruin their blossoming careers and businesses following a mass exodus.
Dande swore an affidavit on behalf of his colleagues. He claimed that Britam first filed several cases claiming that they had conspired and transferred colossal sums of money on account of investing in real estate as part of a partnership between Britam and Acorn Group.
This, he argued, was false.
Further, the Court of Appeal heard that Britam lodged various complaints to the former employees’ professional bodies.
For instance, Britam complained about Ms Njeri before the Law Society of Kenya’s disciplinary committee. At the same time, Ms Nkukuu and Njeri were also reported to the Certified Financial Analyst Institute.
Nkukuu was further reported to the Institute of Certified Public Accountants of Kenya.
The dispute started when Britam went to court claiming that its former managers fraudulently transferred billions of shillings from its accounts and channeled them to accounts held by Acorn Ltd and its affiliates.
In an out-of-court settlement, Acorn Ltd agreed to return land that had been purchased with funds transferred from Britam.
The deal also allowed Britam to recover a five-acre piece of 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.
In his replying affidavit, Mr Haji said that on October 16, 2014, Britam’s acting chief executive made a complaint to the DCI alleging that a sum of Sh10 million and Sh1 billion respectively had been fraudulently misappropriated by the four accused.
Britam added that the four were its employees at its Real Estate Fund.
According to the DPP, investigations revealed that Arora allegedly generated instructions for payment of the funds. This was allegedly reviewed by Nkukuu and approved by Dande.
He said the accused immediately resigned from Britam in a calculated move to frustrate investigations.
In addition, investigations revealed that Britam had no interest in the accounts where the funds in question were credited or disbursed.
Principal Prosecution Counsel Gitonga Muranga argued that Britam’s civil cases against the four did not block them from charging the four. He asserted that the decision to charge them was not geared towards settling scores.
Meanwhile, the Court of Appeal ordered the four to pay the cost of the appeal to the DPP and Britam.