BY SAM ALFAN.
Directors of Edderman Property ltd, the company that constructed the multi-billion Lake Basin Mall in Kisumu will now face prosecution after the High Court dismissed their plea to quash the trial.
Justice James Wakiaga dismissed the petition saying Zeyun Yanga and Zhang Jing failed to prove allegations of violation of their constitutional right.
The judge further said having failed to prove any violation of their rights, the claim for damages also fails.
“I have considered the evidence and submissions and I am of the view that the petitioners have not proved that their arrest and prosecution violated their human dignity contrary to Article 28 of the Constitution,” ruled Judge Wakiaga.
Justice Wakiaga said he took the view and hold that all the allegations raised by the duo and the company will constitute part of their defence at the trial.
The Judge said the trial magistrate will determine whether or not there was any offence committed by the company and should the court find otherwise, then an appropriate relief shall be issued and should it come to the conclusion that the dispute is a commercial and not civil nature.
He said the directors and the company will have their day in court where they will set the record straight.
The judge observed that It is not enough for the petitioners to say that they were merely arrested and then prosecuted, but they had to show that the arrest and prosecution was unjustified and how it infringed on their constitutional rights thereby affecting their dignity.
The company and its directors moved to court seeking to quash their charges arguing that their prosecution was in violation of their fundamental rights to due process, Fair administrative action, right to property, fair application of the law, equality and freedom from discrimination, human dignity, fair hearing and protection of law.
They also sought the court to order that all the documents carried away from Zeyun offices be released to him.
In their court documents, they also sought the court to declare that their arrest and charging them with the concerning construction of LBDA notwithstanding section 23 of penal code and section 996 of the Companies Act coupled with the absence of incriminating evidence against them amount to violation of their rights to due process of law fait trial protection by section 34 of ACECA and Article 28 and 50 of the constitution.
They also urged the court to order that in accordance with the commercial contract between him and Lake Basin Development Authority, the disputations on alleged inflation of costs over valuation or matters ancillary thereto be subjected to arbitration between Edderman Property ltd and LBDA with the arbitration clause and attorney General be admitted therewith to represent public interest and the Government of Kenya.
They also urged the court to award them with damages for violation of their fundamental rights.
