By Sam Alfan.
Bidco boss Vimal Bhinji Shah has narrated how businessman Nicholas Alexander Nesbitt and Briton Boytorun Mehment visited his house promising to provide his company with US dollars to help in running the business.
Introducing themselves as partners, the duo allegedly said they were in a position to provide Bidco Africa with US dollars in exchange for Kenya shilling to finance the business.
The tycoon said it was from the said visit that a Trade Finance Agreement was signed between him, on behalf of Bidco Africa ltd and Bulent Boytorun on behalf of Bee N Bee Kenya.
While opposing Nesbitt an application by Nesbitt seeking to quash the criminal charged he is facing, Shah said he was induced into entering into the Agreement because of other relationship that he had with Nesbitt.
He said Nesbitt intentionally manipulated the said relationship to intentionally defraud Bidco Africa ltd.
The Bidco CEO said that it is from the representation of Nesbitt that they got into the agreement with the Company Bee N Bee Kenya Limited.
Aggrieved by the actions Shah said he lodged a complaint with the Directorate of Criminal Investigation, leading to the decision by the Office of the Director of Public Prosecutions to prosecute Nesbitt together with his business partner.
Nesbitt has denied charges of conspiracy to defraud while his co-accused fled the country.
Shah submitted that the court should hesitate to interfere with the functions of the DPP unless there is clear evidence of breach of the Constitution or abuse of discretion to prosecute, which he said Nesbitt has failed to demonstrate in the documents submitted in the application.
“We submit that no evidence has been tendered to show that the DPP abused his discretion or powers under the Constitution.
“An analysis of the documents filed by the Ex-Parte Applicant in the Judicial Review Application herein only speaks of an pending civil dispute which should not be a subject of the criminal process as the two are separate and distinct in their very nature,” said the company.
The company submitted that the constitutional independence of the DPP must be respected, and for the court to intervene, there must be clear evidence of breach of the constitutional duty to act on the part of the DPP or abuse of discretion.
The company added that the prosecutorial discretion is generally accorded judicial deference and that courts will only interfere in the clearest and most exceptional of cases.
“The Application by Nesbitt herein does not meet the threshold set as analysed hereinafter to warrant this Court to interfere with the discretion of the DPP,” court heard.
