Kisumu High Court has temporarily stopped the trial of two Indian businessmen accused of conspiring to defraud BN Kotecha Sh50 million.
On June 3, Mr Sunil Shah and Kamal Shah were arrested and transferred to the Directorate of Criminal Investigations (DCI) headquarters in Nairobi after the Director of Public Prosecutions (DPP) recommended that they be jointly charged with conspiracy to defeat justice, forgery and uttering a false document to defraud B.N. Kotecha and Sons.
Sunil and Kamal are directors at United Millers, alongside Henry Musyoki Kavita and Magnesh Kumar Verma, were to face seven charges.
They were accused of using forged local purchase orders to claim special damages in High Court Civil Suit No. 38 of 2015 in Kisumu for breach of contract and leading to loss of business.
In their petition, through lawyer Ibrahim Stanley Ogejo, the two directors claim that Mr Kotecha’s taking them to court amounts to abuse of authority by attempting to challenge a decision of the High Court in a commercial dispute using criminal law.
Among the orders sought by the millers was that the court declare that their arrest and intended arraignment contravenes the Constitution.
They also wanted the court to award them general damages for the distress and mental anguish caused by the infringement of their fundamental rights and freedoms, and the inconvenience caused by the suit.
“The petitioners are the target of unfair, unprocedural and grossly flawed investigations for alleged conspiracy to defeat the course of justice and other offences,” read the petition.
The four were to be arraigned in court Thursday, but Judge Tripsisa Cherere, in a ruling delivered on Wednesday, suspended their plea-taking.
“It is hereby ordered that the intended arraignment of the petitioners before the chief magistrate’s court in Nairobi on June 25, 2020 is hereby stayed, pending further orders on July 14, 2020,” said Justice Cherere.
The ruling arose from a petition filed by the four on June 18.
The judge also directed the applicant to serve the petition, certificate of urgency, notice of motion and any supporting affidavits on the respondent within seven days.
The respondents in the case are B.N Kotecha and Sons, DCI, DPP and Attorney-General. They are required to file and serve their responses within 14 days.
The ruling comes days after the DPP failed to approve charges against the two directors of United Millers despite having authorised their prosecution.
Their plea-taking was first deferred on June 4 to June 25 after the DPP asked for more time to review the veracity of additional information presented to them by the United Millers’s lawyers.
This did not go down well with B.N. Kotecha’s lawyer, Tom Ojienda, who accused the DPP of attempting to bungle the case and failing to issue a notice on the progress of the case.
Prof Ojienda said he was suspicious of the DPP’s failure to respond to his complaints while prosecutors showed extreme efficiency in responding to the letter from the United Millers’ lawyers.
He vowed to challenge an alleged move by the DPP to drop the charges against the directors and charge only Mr Kavita.
Prof Ojienda, while lodging a complaint on the handling of the criminal charges, appealed to DPP Noordin Haji to investigate the conduct of assistant DPP Joseph Riungu, accusing him of engaging in outright abuse of office and conflict of interest.
The case will be mentioned on July 14 via videoconferencing to confirm compliance with orders issued by the court and for further directions.-Daily Nation.
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