Mr Stanley Kebathi and Mr Kariuki Muchemi have lost a court bid to stop their prosecution after the Court of Appeal held that there was no evidence to show that there was an ulterior motive in the charges brought against them.
The two experts prepared a report which showed that the building developed by Cementers Ltd on behalf of Multichoice was structurally unsound.
Mr Kebathi was the principal architect while Mr Muchemi— through his firm Interconsult Engineers Ltd (IEL)— prepared reports on the integrity of the construction being undertaken by Cementers Ltd.
“To our mind, having not come across evidence demonstrating that the decision to prosecute Kebathi et al was an abuse of the process of court, we think they should have their day in court where they will confront the charges and evidence assembled against them,” the judges said.
Dipak Halal, a director of Cementers Ltd said the firm entered into a contract for construction with Multichoice for the suit property but in the course of the construction, disagreements arose between them.
He said Multichoice decided to terminate the contract, but the construction firm protested the move.
The construction firm later obtained a court order against Mr Kebathi and Mr Muchemi together with their companies and lodged a criminal complaint against them with the Directorate of Criminal Investigations (DCI).
The two experts had complained that the criminal charges were intended to damage their professional reputations and frustrate or unduly influence proceedings that are pending before an arbitrator and other ongoing court cases.
The two were charged before a Milimani court in March 2022 alongside Mr Wilson Karaba with conspiring to falsify a structural integrity report as part of a plan to defraud.
The experts have been charged alongside IEL, Conapex Consulting Engineers and SK Archplans.
Mr Kebathi challenged his prosecution before the High Court but the case was dismissed by Justice Jairus Ngaah in July 2023, prompting the appeal.
Mr Kebathi faulted the High Court judge in his finding that they were guilty of non-disclosure of material facts, contrary to the evidence on record.
He also submitted that the judge analysed the evidence before the criminal court in a biased, one-sided fashion and maintained that the criminal charges were instituted for improper motives.
His lawyer Mbuthi Gathenji submitted that Mr Kebathi provided a full, frank and chronological disclosure of the dispute, including the structural integrity report.
Mr Eddie Omondi, Multichoice’s lawyer, argued that the complaint made by Cementers Ltd to the police is a shield against being found civilly culpable in damages for defects in the proposed block.
Further, the intention of Cementers in instituting the criminal proceedings was to avoid payment of damages which are quantified at Sh895 million, an issue he said, can be sufficiently addressed in the pending arbitration.
He added that they were witnesses in the arbitration and the commercial dispute, and therefore, charging them with crimes, reduces their credibility.
Mr Muchemi asserted that the criminal justice system should not be used to achieve private ends, especially where private interests can be achieved through other means.
He contended that the report was done by Mr Muchemi on the basis of his knowledge in structural engineering and therefore that report was a private and professional opinion to Multichoice Kenya.
Director of Public Prosecutions Renson Ingonga defended the charges, saying a complaint was made and which was investigated.
Mr Kebathi said he used to visit the site regularly, and during one such visit, he noted cracks in the building and sagging of some floors.
He said the cracks and sagging floors raised concerns about the integrity of the development, and it was decided that the services of an independent structural engineer be sought to audit building and determine if the perceived defects affected its structural integrity.
Multichoice then commissioned Mr Muchemi through his company, IEL, as independent consultants to conduct a structural audit of the building.
Mr Muchemi through his company produced independent periodic reports while liaising with the Project Engineer, Conapex Consulting Engineers (Conapex), whose reports were forwarded to Multichoice.
After several meetings between Cementers and Multichoice, and other professionals, the construction contract between Cementers and Multichoice was terminated on June 21, 2017.
