BY SAM ALFAN.
An architect and a private consultant at the center of a dispute between Multichoice Kenya and a construction company will have to face criminal charges after failing to stop the charges.
Stanley Kebathi and Kariuki Muchemi of Interconsult Engineers lost the bid to block the charges after the Court of Appeal dismissed their case.
Justices Patrick Kiage, Ali-Aroni and Lydia Achode dismissed application by Kebathi and Muchemi and their companies saying the appeal was devoid of merit.
“We are of the considered view that both the civil suit and the criminal proceedings can be pursued concurrently in this matter. It has not been demonstrated to us satisfactorily that there was an ulterior motive in the institution of the criminal case,” the appellate judges ruled.
At the centre of the dispute is a Sh895
Million between MultiChoice and Cementers, who has been contracted to build the farmer’s headquarters in Nairobi’s Kileleshwa area.
Cementers is accusing the architects and the consultant of doctoring a report on the building to avoid payment.
The said report led to the termination of the contract.
The appellate judges ruled they did not come across any evidence demonstrating that the decision to prosecute Kibathi was an abuse of process of court.
“We think they should have their day in court where they will confront the charges and evidence assembled against them,” judges ruled.
The judges said a perusal of the record showed that the notice of motion dated 29th March 2022, by which the judicial review application was made, was lodged under Order 53 rule 3 of the Civil Procedure Rules.
“There is no mention of any Constitutional provision or violation of rights therein. It then follows that the learned Judge was right when he declined to assess the evidence, as he was invited to, in order to determine whether a crime was committed and, therefore, whether the Director of Public Prosecutions was right in his decision to charge and prosecute,” noted the appellate judges.
The report was forwarded to the police who investigated the matter and recommended charges against the two experts.
Thereafter, upon DPP reviewing the file, it deemed it necessary to charge and prosecute them.
