Former British-American Investments Company (Britam) managers Edwin Dande, Elizabeth Nailantei Nkukuu, Patricia Njeri Wanjama and Shiv Arora have lost a bid to stop their prosecution over alleged irregular sums from Britam-affiliated accounts to rival companies.
Justice John Mativo Tuesday ruled that the managers have failed to prove that the decision by the Director of public prosecution (DPP) is irrational or illegal or how their rights are infringed, noting that all grounds raised can be dealt by the trial court.
The four were in 2016 charged with the criminal offence relating to theft by servants for the sum of Sh1.1 billion, which they contested in the High Court.
They told the court that they never benefited from the cash and that the issue has been resolved after Britam and property development group Acorn and seven of its affiliates reached a settlement.
“Accordingly, I hereby dismiss the applicants notice of motion dated February 3, 2017 with no orders as to costs and direct that Nairobi chief magistrates criminal case number 1735 of 2016 proceeds to hearing and determination,” ordered Justice Mativo.
The former managers claimed that the suit is meant to taint their image, arguing that although civil suits were filed in the High Court the case has been settled and the cash involved refunded.
But the Judge in his ruling noted that DPP made the decision to charge the managers after independently reviewing the files forwarded to him and therefore no issues of malice or illegality has been demonstrated.
The case is one of the biggest disputes in corporate Kenya involving an NSE-listed firm and its former managers.
Mr Dande, now chief executive of investment firm Cytonn, and his team are accused of wiring Sh1.16 billion out of Britam in five tranches to multiple accounts held by Acorn at Chase Bank and a further Sh2.78 billion to seven entities that are subsidiaries of Acorn.
Financial services group British American Asset Managers (BAAM) filed suit at High court to recover the cash.
The former managers have vigorously denied the accusations. The Cytonn executives defended the transfer of Sh3.9 billion from BAAM’s accounts, arguing that the said financial transactions were approved by all of their former employer’s board and top management.
Mr Dande has filed in court copies of emails and meeting minutes he insists are evidence that Mr Wairegi and directors of Britam, including Mr Jimnah Mbaru and Mr Peter Munga, were aware of BAAM’s dealings with partners and clients.
The suit was dropped against property development group Acorn and seven of its affiliates following an out-of-court deal that will also see it relinquish a minority stake it holds in the real estate firm.