The Supreme Court has dismissed an appeal by three former British American Asset Managers Limited bosses and founders of Cytonn Investments, Edwin Dande, Elizabeth Nkukuu and Patricia Wanjama, to quash their prosecution for alleged theft of Sh1 billion.
The Supreme Court ruling paves the way for the trial of the three, who have been fighting to have the charges quashed and the Director of Public Prosecutions barred from prosecuting them for nine years.
They wanted the Supreme Court to set aside the Court of Appeal's ruling, which dismissed their application to block the trial and permanently bar the police from arresting or harassing them in connection with the complaint Britam filed against them in 2014 for theft by servant.
But the High Court yesterday ruled that the proper course for them was to face the charges in the Chief Magistrate's Court and let that court determine their innocence or guilt.
"The appellants' appeal is one for dismissal and the proper course for them to follow is to face the charges in the Chief Magistrate's Court and let that court determine their innocence or guilt. They have not persuaded us that they are entitled to any relief and we so find," said the court, led by Chief Justice Martha Koome.
Other judges on the bench were Smokin Wanjama, Njoki Ndung'u, Isaac Lenaola and William Ouko.
On the appellants' contention that they were denied the right to access information relating to the forensic audit of Britam by KPMG and the legal audit by Coulson Harney Advocates, the apex court said the right to access information was not an absolute right.
"Looking at the submissions of the appellants, while on the one hand they have identified the required information and its sources, they have come to the incredible conclusion that the said information contains information adverse to them and is the sole basis for their arrest and prosecution. If that is the case, what is the point of an order of release when they are already allegedly aware of the contents of the KPMG report and the legal audit by Coulson, Harney, Advocates?" the court asked.
The judges noted that at trial, Mr Dande, Ms Nkukuu and Ms Wanjama will have the opportunity to examine any and all documents to be produced by the DPP.
"If those documents include the ones they now want, they will have ample opportunity to study them and challenge their veracity. As it stands, their application is misconceived and we have no hesitation in holding that the appellants were and are not entitled to the right of access to information under Article 35(1)(b) of the Constitution," the Supreme Court judges said.
British American Asset Managers Limited (BAAM), a subsidiary of Britam (BAAM), through lawyer Fred Ngatia, told the apex court that the appellants had obtained stay orders from the High Court barring their prosecution.
Mr Ngatia, a Senior Counsel, said the appellants had therefore not been arraigned in court, charged or directed to enter a plea.
He added that there was no evidence that the investigation, arrest and prosecution of Mr Dande and his colleagues was an abuse of power, vexatious, oppressive or motivated by bad faith.
Mr Ngatia said the Court of Appeal had found that the arrest and investigation were based on complaints made by BAAM and that the Court of Appeal had correctly recognised the mandate of the police to investigate criminal complaints, including those made by BAAM, without undue interference.
"Since the appellants had therefore not undergone a trial, they could not show what right they sought to protect and how the information sought would assist in the protection of that right," Mr Ngatia said, urging that the appeal be dismissed.
Mr Dande and his two colleagues left Britam to set up a rival company, Cytton Investments Limited.
They were senior executives of BAAM, a subsidiary of British American Asset Managers Company (K) Ltd (Britam), responsible for unit trusts, discretionary portfolios, cash management solutions and alternative investments.
Mr Dande was the Chief Executive Officer, while Ms Nkukuu was the Senior Portfolio Manager and Ms Wanjama was the Assistant Company Secretary.
Sometime in 2013 and during the course of their employment, BAAM entered into a joint venture project with Acorn Group Limited (Acorn) for the development of real estate and other business ventures in Nairobi County and elsewhere.
Acorn was to be responsible for property development activities, while BAAM was to be responsible for property finance and exit activities.
It was also a condition of the agreement that BAAM would acquire a 25 per cent shareholding in Acorn with two seats on the board and membership of committees for oversight purposes.
Acorn and BAAM thus became special purpose vehicles for the sole purpose of carrying out specific projects.
Subsequently, Britam expressed its concerns about BAAM's involvement with Acorn, including that Acorn was not a property expert.
A dispute arose between Britam and the three employees. The main point of contention was whether the trio, as managers of BAAM, could commence any property project and sign contracts directly with BAAM's clients without any benefit to Britam's shareholders.
As a result of the dispute, the trio resigned from Britam on various dates between August and September 2014 and formed a rival company, Cytonn Investments Limited.
BAAM brought various civil actions against the three and Acorn in October 2014, seeking the return of funds they allegedly fraudulently transferred to Acorn and its subsidiaries without BAAM's consent "under the guise of investing in property as part of the joint venture".
BAAM also lodged complaints against them with various professional bodies to which they belonged, and criminal proceedings were instituted against them following complaints lodged by BAAM.
