Court rejects DPP bid to withdraw Sh356.7m theft case against businessman

Former Oki General Trading director Honey Khatwani accused of Sh356.7m fraud at Milimani Law Courts. [Nancy Gitonga, Standard]

A Nairobi court has declined an application by the Director of Public Prosecutions (DPP) to withdraw a criminal case in which businessman Honey Khatwani is accused of stealing more than Sh356.7 million from Oki General Trading Limited.

In a ruling delivered on Tuesday, Milimani Chief Magistrate Rose Ndombi rejected the prosecution's request to terminate the case under Section 87(a) of the Criminal Procedure Code, finding that the grounds advanced for the withdrawal had not been sufficiently established.

"The application by the DPP in withdrawal of the charges under Section 87A of the Criminal Procedure Code is declined. The criminal proceedings against the accused shall proceed in accordance with the law," Magistrate Ndombi ruled.

The magistrate also upheld objections raised by the complainant, who argued that they had neither been consulted nor informed about the intended withdrawal and maintained that the criminal and civil matters were distinct.

The decision is a major setback for the prosecution, which had sought to discontinue the proceedings on the grounds that the dispute had a civil dimension and that parties had initiated efforts to resolve the matter through a consent agreement.

Khatwani, a director of Oki General Trading Limited, is charged with US dollars 2,786,174.4, approximately Sh356,711,174.40, allegedly entrusted to him by virtue of his position in the company.

Prosecution alleges that the theft occurred on diverse dates between January 2020 and June 2024 while Khatwani served as a director of the company based in Baba Dogo within Nairobi's Ruaraka Constituency.

In her ruling, Magistrate Ndombi acknowledged the prosecution's argument that there was an ongoing civil dispute between the parties and that discussions aimed at settling the matter had taken place.

However, she held that the existence of a civil case alone was not sufficient reason to halt criminal proceedings.

"The court notes that the existence of a civil dispute does not by itself justify termination of criminal proceedings," she said.

The magistrate pointed to Section 193A of the Criminal Procedure Code, which expressly allows civil and criminal proceedings arising from the same facts to run concurrently.

She further observed that the intended withdrawal of the criminal case was tied to a condition requiring a refund of the complainant's money, a condition that had not been fulfilled.

"The complainant consistently maintained that no such refund has been made. This assertion has not been controverted before the court by the defence," Ndombi said.

"The court therefore finds itself confronted with a situation where withdrawal is being sought based on a condition that remains unfulfilled."

She warned that allowing the withdrawal under such circumstances would undermine the administration of justice.

"If the court were to allow the withdrawal under such circumstances, it would effectively sanction the benefit of a settlement process before performance of the very condition upon which the withdrawal was hinged. In the court's view, such an outcome would not serve the interests of justice."

At the same time, the court allowed a separate application seeking investigations into allegations that Khatwani may have knowingly made false representations to the court in earlier proceedings.

The complainant alleged that the businessman obtained favourable court orders after claiming he was unable to contact family members in Dubai due to unrest in the region.

Ndombi emphasised that the court was not making any finding of guilt but held that the allegations warranted investigation.

"Allowing investigation does not amount to a finding of guilt. It merely permits the relevant investigative agency to inquire into the allegations and determine whether an offence has been committed," she said.

The court directed the Directorate of Criminal Investigations (DCI) to investigate the allegations and take any action that may be warranted by the outcome of those inquiries.

The criminal trial against Khatwani will now proceed before the Milimani court.