BY SAM ALFAN.
The owners of the Sh 240billion Tatu City project have succeeded in reviving an eight year old criminal case against pioneer partners Stephen Mbugua Mwagiru and his mother Rosemary Wanja Mwagiru.
The mother company, Tatu City Ltd and its main subsidiary Kofinaf Company Ltd, convinced the Court of Appeal judges that High Court Judge Mumbi Ngugi should not have blocked the prosecution of the Mwagirus and lawyer Robert Githu for forgery and presenting false documents.
They had been charged before the Chief Magistrate court in Nairobi with the offence of forgery contrary to section 349 of the Penal Code.
They were accused that on June 11 2010 within Nairobi City centre jointly with others not before the court, they forged a certain document CR 12C 1135765 Registrar of Company report dated June 10, 2010 purporting to be a genuine document issued by the Assistant Registrar of Companies Wilson Gikonyo.
Appellate Judges Wanjiru Karanja, Patrick Kiage and Fatuma Sichale ruled that Justice Ngugi “was plainly wrong” and “committed a reversible error of law” when she shielded the trio from facing justice.
“The decision of the High Court is set aside and substituted by an order dismissing the petition with costs”, the judges ruled.
In their 31 page judgment, The learned judges said that the stoppage or truncation of criminal charges, cases, investigations and processes must issue only in exceptional circumstances, and not willy-nilly so long as an accused person complains, notwithstanding that he has not demonstrated the abuse of process or oppression complained of with satisfactory evidence.
They said it was against public interest and offensive to the criminal justice system for accused persons to seek protection without demonstrating compelling reasons to justify exemption from prosecution.
But Justice Ngugi stopped the trial in 2013 saying the trio’s prosecution was not an honest enforcement of law and an order of prohibition was sufficient to stop the blatant abuse of the court process.
The court, she said, could not entertain “a galloping litigant” who was ready to use the criminal justice system to pursue a purely commercial dispute, she said.
The two firms, represented by Senior Counsel Ahmednassir Abdullahi, were aggrieved by Justice Ngugi’s decision delivered on November 12, 2013 stopping the two-count indictment against the three on the basis that it amounted to an abuse of the court process.
The trio was alleged to have forged a report by Assistant Registrar of Companies, Wilson Gikonyo, on June 11, 2010 that was used to register caveats on nine prime properties belonging to the firms. The Mwagirus had claimed to have been the sole shareholders and directors of Tatu City Ltd, which was previously known as Waguthu Holdings (K) Ltd, and applied to block any transactions on the land.
Ahmednassir had argued there were no valid reasons and justification to terminate the criminal case, which was instituted on December 6, 2010 since Justice Mumbi did not exonerate the accused persons from criminal liability regarding the contentious Companies Registry form used to register the blockade. The caveats were eventually removed administratively although the Director of Public Prosecutions (DPP) is at liberty to re-open the cases, he said.
SC Ahmednassir recalled that Justice Fred Ochieng had dismissed an application by the three persons for conservatory orders on October 24, 2011 for lack of sufficient evidence to demonstrate that the DPP or the police were acting under the influence of interested parties in filing the criminal case.
The Mwagirus ceased to be directors of Waguthu Holdings (now Tatu City Ltd) from March 4, 2009 and transferred all their shares, except one, to Cedar IV Ltd. Similarly, they resigned as Tatu City board members.
Lawyer Kamau Kuria had protested that the criminal case was meant to coerce and intimidate the Mwagirus to withdraw two commercial disputes in which they were seeking the winding up of the companies. The DPP was working in cahoots with foreign investors to exert illegal pressure on the Mwagirus to remove the caveats, he had claimed.
He maintained that the two companies had no right of appeal after the DPP had chosen to drop the case following the court’s intervention. “This is an academic exercise.
“The DPP works independently and has not filed an appeal,” he had said.
