BY SAM ALFAN.
Former CBK governor Nahashon Nyaga suffered a major setback on Tuesday after High Court threw out an application seeking to stop arrest and prosecution.
The application by local minority investors in the controversial Tatu City housing project sought to compel the Director of Public Prosecutions, Keriako Tobiko, to furnish them with his appraisal of recommendations for the prosecution of their rival foreign majority shareholders.
Justice Joseph Onguko rejected demands by former Central Bank of Kenya (CBK) Governor, Nahashon Nyagah, his local co-directors and their lawyers to be supplied with the DPP’s dossier on the basis that the long-running dispute was now being handled by the State multi-agency team.
There was no potential for injustice if the appraisal was not disclosed, the Judge observed, since the aggrieved parties had failed to establish mischief in the handling of the investigations and their hypothetical fears were unfounded.
The learned Judge scoffed at allegations that the DPP was a stumbling block and was acting at the behest of Senior Counsel Ahmednassir Abdullahi in favor of the foreign investors.
Lawyers Nelson Havi and Michael Osundwa, who have been representing the local minority shareholders, have challenged their proposed prosecution following complaints lodged by the majority shareholders about alleged fraudulent transfer of Sh5.2billion shares in one of the firms.
The two lawyers filed a judicial review application in which they had accused Tobiko of alleged failure to pursue recommendations made by the Director of Criminal Investigations, Ndegwa Muhoro, to prosecute the foreign investors led by Stephen Armstrong Jennings.
Senior State Counsel Edwin Okello, had explained in a sworn statement in defence of the DPP that the delay in concluding the probe was occasioned by two conflicting findings by the investigations agency “that gave rise to the need for a further inquiry.”
Initially, there was a recommendation to prosecute Mr Nyaga, his lawyers and co-petitioners over alleged fraudulent transfer of shares and directorship of the Purple Saturn properties the recommendation was lodged in an inquiry file number 40 before a new file surfaced in inquiry file number 77 which then recommended the prosecution of Mr Jennings and his associates.
“I am aware that on March 14, the DCI raised the issue of two inquiry files. Investigations are still on-going and the DPP is yet to make a final decision regarding the matter,” Okello had said. One of the files relates to alleged forgery to the Registrar of Companies for change of shareholding and directorship of Purple Saturn Properties Ltd while the other one relates to the alleged fraudulent transfer of shares.
Mr Okello explained that Nyagah, Havi, Osundwa and their co-petitioners cannot be supplied with the confidential dossier since they are suspects. Further, any disclosure of confidential reports would be highly prejudicial to the on-going investigations and compromise the ultimate decision to be made by Tobiko, he has stated.
Regarding allegations that the DPP has been acting under the direction of Mr Abdullahi, the judge upheld submissions that the allegation made against the DPP was “frivolous.”
The petition will be heard on December 19 for further orders or directions by the court.
