Ex-Britam executives accused of making unauthorised payments of over Sh1 billion from the firm more than seven years ago will face fraud charges after the Supreme Court declined to stop the intended trial.
The four former senior employees, including Edwin Dande, Elizabeth Nkukuu, Shiv Arora and Patricia Njeri, will have to face charges after the top court dismissed their appeal, saying it lacked merit.
The four former officials had argued that the charges against them were skewed and malicious as the Director of Public Prosecutions (DPP) Noordin Haji failed to act independently in instituting the criminal case against them.
“For these reasons, therefore, it is our view that the application lacks merit and is for dismissal,” said Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.
Mr Dande and the three argued that the Supreme Court should hear the case because it touches on the violation of their rights to a fair hearing. They also argued that the DPP had abused his powers by instituting the charges against them with ulterior motives.
A bench of three judges of the Court of Appeal had ruled in February that the former senior staff admitted that they authorised the remittances and had subsequently agreed to reimburse the millions.
“Prima facie therefore, there was evidence of the commission of the offence. As to whether the evidence was sufficient to found a conviction is for the trial court,” Justices Asike Makhandia, Mumbi Ngugi and Pauline Nyamweya said.
The Judges also dismissed claims that the Director of Public Prosecutions (DPP) Noordin Haji bowed to pressure from Britam to prosecute them, saying there was no evidence to support the claims.
“Apart from making that bold assertion, the appellants provided no evidence to prove the allegation. It is not enough for a party to make wild allegations and leave it to court to surmise. Nor was there evidence that the 1st respondent (DPP) instituted the criminal proceedings in a bid to pressurise the appellants to settle claims instituted against them by the 3rd respondent (Britam),” the judges said.
The four were to be charged with two counts of theft by servant after allegedly authorising payments of more than Sh1.1 billion from Britam, an offence they allegedly committed between July and September 2014 from the firm’s real estate fund.
The DPP investigations revealed that they engaged in fraudulent, irregular and unauthorised withdrawals or managed funds fraudulently.