Four managers of Cytonn Investments Management Limited have lost bid to stop the Director of Public Prosecutions from charging them over alleged theft of Sh1 billion from their former employer, the British-American Investment Company (Britam).
The four - Edwin Harold Dayan Dande, Elizabeth Nailantei Nkukuu, Patricia Njeri Wanjama and Shiv Anoop Arora - wanted the Supreme Court to suspend the criminal proceedings opened by the DPP at a Nairobi Chief Magistrate court pending determination of their appeal against the trial.
They argued that their intended appeal, against decision of the Court of Appeal to reject the request to stop the criminal trial, raised complex issues of constitutional interpretation touching on the violation of their rights to fair hearing.
They had further argued that unless the criminal proceedings got suspended, by the time their intended appeal is determined they will have already gone through an unlawful and expensive trial process.
But the Supreme Court dismissed the request saying it cannot suspend proceedings that were pending hearing in the Magistrate’s court as sought by the four managers.
“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.
In the ruling, the Apex Court considered a preliminary objection raised by Britam, through lawyer Fred Ngatia, Senior Counsel, in opposition to the request made by the four.
Mr Ngatia contended that the case at the Supreme Court was incompetent because the managers had no raised issues relating to the interpretation or application of the Constitution.
In the criminal case instituted on November 4, 2016 the four face two counts related to theft by servant.
They are accused of stealing sums of Sh1,161,465,388 and Sh10,132,368 being the property of Britam, their previous employer.
The sums forming basis of the said criminal charges were the subject matter of the claims in two civil suits lodged by Britam at the High Court.
They said the suits had been compromised, settled and withdrawn and none of the four former employees benefited from the disputed sums.
Further that no loss was suffered by Britam as it recovered the full amounts from Acorn Group Limited, its affiliates as well as the special purpose vehicles in which the money had been invested by the former employees.
While accusing DPP of abusing his prosecutorial powers, they said reasons for their prosecution was. Therefore. not vindication of the rule of law but was instigated by Britam for the purposes of eliminating them from business competition.
They argued that there was no reasonable factual basis upon which DPP could conclude that charges of theft by servant could be instituted against them.
That Britam being unhappy with their mass resignations from its employment, “looked for ways to ruin their blossoming careers and growing business elsewhere.
Britam on its part said it had made a complaint to the Directorate of Criminal Investigations (DCI) alleging that the sums of money had been fraudulently misappropriated by the four ex-employees between September 1, 2014 and July 31, 2014 from its Real Estate Fund.
That investigations were launched by the DCI and upon conclusion, the file was forwarded to the ODPP for purposes of decision making as to whether or not the four should be prosecuted.
Britam stated that from the investigations, it was noted that instructions for payment of the funds was generated by Arora, reviewed by Wanjama and approved by Dande.
These monies were thereafter disbursed into various unauthorized accounts, said Britam.
It added that specimen signatures confirmed that they belonged to the four and further that they thereafter immediately resigned from the employment in a calculated move to frustrate investigations.
In addition, the investigations revealed that Arora had no interest in the accounts where the funds in question were credited or disbursed.
The delay in making the decision by the DPP whether or not to charge them was due to stay granted by the High Court. It was not until September 14, 2016 when their Judicial Review application was dismissed that the DPP filed the criminal case against them.
Prior to their resignations, Dande was Britam’s Managing Director, while Nkukuu was the Senior Portfolio Manager, Wanjama was the Head of Legal (Services) and Assistant Company Secretary and Arora was the investment analyst.
