The Director of Public Prosecutions (DPP) can now charge four executives of Cytonn Investments Management Limited with plundering Sh1 billion from their former employer, the British-American Investment Company (Britam) after they lost bid to stop their prosecution.
The four – Edwin Harold Dayan Dande, Elizabeth Nailantei Nkukuu, Patricia Njeri Wanjama and Shiv Anoop Arora had asked the Supreme Court to halt the criminal proceedings initiated by the DPP in a Nairobi Chief Magistrate court until their appeal against the trial was heard.
However, the Supreme Court denied the plea, stating that it could not stay proceedings ongoing in the Magistrate’s court, as the four managers had requested.
“It is fairly elementary that this court can only grant an order of stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal but not of proceedings pending hearing in the Magistrate’s court, as sought in this application,” said the Supreme judges.
The four contended that their anticipated appeal, which would challenge the Court of Appeal’s decision to deny their plea to halt the criminal trial, would raise difficult constitutional concerns involving a violation of their right to a fair hearing.
In its decision, the Apex Court reviewed a preliminary objection brought by Britam, through Senior Counsel Fred Ngatia, in opposition to the four’s plea.
They further claimed that unless the criminal proceedings were suspended, they would have already gone through an illegal and costly trial procedure by the time their intended appeal was decided.
Ngatia said that the Supreme Court case was incompetent since the managers had not raised any questions relating to the Constitution’s interpretation or application.
The four are charged with two counts of theft by servant in a criminal complaint filed on November 4, 2016.
They are accused of stealing money from Britam, their previous employer, totalling Sh1,161,465,388 and Sh10,132,368.
The monies on which the criminal accusations were based were the subject of claims in two civil cases filed by Britam in the High Court.
They claimed that the lawsuits had been settled, and that none of the four former workers had benefited from the disputed funds.
Britam also experienced no losses because it was able to recover all of the money from Acorn Group Limited, its affiliates, and the special purpose companies in which the former workers had invested it.
They stated the basis for their prosecution while accusing the DPP of abusing his prosecutorial authority. As a result, it was not a vindication of the rule of law, but rather an attempt by Britam to exclude them from corporate competition.
They claimed that there was no legitimate factual basis for the DPP to conclude that they may face accusations of theft by servants.
Dissatisfied with their mass resignations Britam, “tried for ways to sabotage their flourishing careers and expanding company elsewhere.”
Britam, on its part, stated it had filed a complaint with the Directorate of Criminal Investigations (DCI) stating that the four ex-employees allegedly misappropriated funds from its Real Estate Fund between September 1, 2014 and July 31, 2014.
Arora also had no interest in the accounts where the cash in question were credited or disbursed, according to the investigations.
The DPP’s decision on whether or not to charge them was delayed due to a stay granted by the High Court.
The DPP did not file a criminal prosecution against them until September 14, 2016, after their Judicial Review application was denied.
Britam went on to say that the decision to charge them was not made to settle a score.
Dande served as Britam’s Managing Director prior to his resignation, while Nkukuu served as Senior Portfolio Manager, Wanjama served as Head of Legal (Services) and Assistant Company Secretary, and Arora served as an investment analyst.
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