BY SAM ALFAN.
The trial of two Chinese contractors over the controversial Sh4.1 billion Lake Basin Mall construction in Kisumu will continue.
The court of appeal had ruled that Zeyun Yang and Zhang Jing, failed to prove why their trial should be stopped.
The two, who are directors of Erdemann Property Ltd, had claimed that the criminal charges were only meant to punish them for persuing payment of Sh645 million.
They had also wanted the matter taken to arbitration given it was a commercial dispute, governed by the arbitration clause.
Justices Daniel Musinga, Hannah Okwengu and Jamila Mohammed found that the applicants were simply jumping the gun, as other than mere speculation, they have not demonstrated any exceptional circumstances to justify interference with the criminal prosecution.
In the year 2021, 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 judges said the magistrate presiding over the case has the obligation of ensuring that they get a fair trial. They added that the two directors can file an appeal if they were not satisfied with the decision of the magistrate or the High Court.
The duo were charged together with former Lake Basin Development Authority chairman Onyango Oloo, former LBDA managing director Peter Abok, and the authority’s board members. They all denied charges of conspiracy to defraud.
The prosecution says the construction of the mall was inflated but the Chinese contractors maintain their innocence.
They challenged their prosecution arguing that the Director of Public Prosecution (DPP) Noordin Haji was abusing his powers because the matter was a commercial dispute.
They also claimed the case was brought to humiliate and embarrass them and also put them through unnecessary expenses and agony while threatening their liberty and disparaging their business.
