In 2018, real estate developer Suleman Ahmed Alimohamed started building apartments in Mombasa, but three years later, the project has attracted the attention of the Directorate of Criminal Investigations.
More than 70 buyers paid varying sums in deposits to the Tudor Heights and Fort Jesus Sea View apartments off-plan.
The construction started smoothly but towards the end of 2019, the project stalled due to hard economic times.
Last year, Mr Alimohamed approached financiers, who agreed to help him finish the remaining work.
But some buyers are impatient and unhappy with the delays, and have now involved the police.
They have lodged complaints at the Central Police Station against the developer over allegations that he obtained money by false pretences.
This has prompted the officers to summon Mr Alimohamed to the station to record a statement concerning the allegations.
Fearing arrest, Mr Alimohamed, also the director of Salyani Properties Ltd, moved to the High Court in Mombasa to stop police from arresting or interrogating him over the project.
The matter, he says in court documents, is commercial in nature having arisen from agreements to build apartments and is not for police to investigate.
“The petitioner prays for the orders that any complaint arising out of the construction of Tudor Heights Apartments and Fort Jesus Sea View Apartments is civilian in nature and does not fall within the purview of the police investigation,” he said.
The developer argues that because the matter is commercial, any aggrieved party should seek a civil remedy, not police action.
“I pray for an order prohibiting the police from interrogating, arresting and or detaining me on allegations arising out of the construction of the apartments as this amounts to gross violation of my fundamental rights,” he said.
Mr Alimohamed was detained at the police station last year and released after depositing Sh100,000 police cash bail.
Court records show that police had informed him that he could be arraigned on November 2 last year but this did not happen.
“The police file was not brought to court, contrary to what I had been told. I have never been arraigned before the court,” he said.
He told the court that his arrest and detention was ill-advised and was solely aimed at harassing and intimidating him because he has not committed any criminal offence related to the construction and sale of the apartments.
The National Police Service and the Attorney-General, who were sued in the case, said the application was misconceived, frivolous, and vexatious and an abuse of the court process, and asked that it be dismissed.
“For the court to interfere, it would have to be satisfied that the criminal process, which has been initiated, is being used with a view (to) forcing Mr Alimohamed to settle the civil claim, evidence (of) which has not been brought before this court,” the AG said
The AG also told the court that the developer did not provide any evidence to show that he will not be accorded a fair trial.
But Mombasa Resident Judge Eric Ogola, who handled the case, noted that the facts, as described in court, can assume a criminal trajectory if there is an element of fraud.
The judge also said that the issues in the case are not criminal but civil and that it cannot be said that the petitioner had a criminal intent of obtaining money from the buyers by false pretences.
“Having entered into purchase agreements for the apartments, each purchaser entered into a contract of sale. If there is a default of any nature, this will be resolved through the sale agreement,” he said.
The judge noted that Mr Alimohamed has been in the real estate industry for over 20 years and that is why more than 80 buyers had the confidence to deposit their cash with him with the hope of owning a home that he is currently building.
“However, it is also in the public interest that if there is any fraud in the said sale, the police must be at liberty to investigate the same. This court cannot discount the possibility of criminal culpability in the sale agreements,” he said.
“If, after the purchase agreements were concluded, or if the purchase agreements disclose a latent criminal intention, this court cannot issue a prohibitory order.”
Despite falling into financial difficulties, the court said, Mr Alimohamed still owes a duty of specific performance to the buyers, and that any orders issued to him do not shield him from the obligations of the purchase conditions he entered into.
“These orders only shield him from police harassment. They do not stop the police from investigating the past, present or future conduct of the petitioner respecting the performance of the aforesaid sale agreements,” he said.
While Justice Ogola issued orders barring the police from harassing Mr Alimohamed, he also directed that he be charged in court within 48 hours or his Sh100,000 cash bail be refunded if there is no case against him.
