Judge reinstates Sh300m fraud case against businessman

This prompted the owner, Pansiba Limited, to report to the police investigators, leading to the subsequent arrest and prosecution of Mr Abdi.

Justice Alexander Muteti faulted the trial magistrate, Geoffrey Onsarigo, for allowing the withdrawal of the charges and focusing more on the rights of the accused person, without considering those of the victim of the alleged fraud (Pansiba Limited).

Mr Abdi, who was accused of forging land ownership documents to acquire the property in 2006, was discharged from the charges last month after the DPP said a review of the evidence showed the dispute would be better solved through civil proceedings.

“The trial court completely ignored the plight of the victim; thus, the exercise of discretion under section 87(a) was improper, irregular, and incorrect in law. The ruling by the honourable magistrate allowing the withdrawal of the case against the accused person under section 87(a) of the Criminal Procedure Code is therefore set aside,” said the judge, ordering reinstatement of the criminal case.

Justice Muteti said the concerns of victims on the manner in which decisions affecting their rights are taken by the investigators and prosecutors must be addressed under the law.

“The reason given for the withdrawal of the criminal case by the DPP of there being a pending civil case is untenable in law in light of the provisions of Section 193A of the Criminal Procedure code and that the Land and Environment Court has no jurisdiction to deal with criminal cases thus it cannot be said that the matter would be dealt with by that court,” he said.

The ruling came amid increased concerns by observers on the growing list of high-profile graft cases dropped by the DPP in the recent past.

The case facing Mr Abdi, who is also known as Abdorahman Huchamsa or Ahmed Nazil, was withdrawn on August 8, 2025, a move that aggrieved Pansiba Limited, and which subsequently applied for review of the same at the High Court.

The company’s advocates also sought the High Court's permission to initiate private prosecution of the accused because the “DPP was reluctant to do so”.

However, upon examining the ruling, Justice Muteti noted that, having reinstated the case for trial, allowing the victim to initiate private prosecution would be akin to allowing the complainant to take over the matter from the DPP.

“Whereas this court may grant leave to initiate private prosecution in exercise of its original and unlimited jurisdiction under Article 165(3) (a) of the Constitution, the matter as it stands now is active in court and the DPP has not declined to prosecute. To grant leave now would be akin to allowing a private person to take over proceedings from the DPP contrary to the provisions of Article 157(6)(b),” said the judge.

He observed that the Constitution only contemplates a takeover of proceedings by the DPP from a private person and not vice versa.
Nonetheless, he said the complainant could still move the trial court, under section 88 of the Criminal Procedure Code, by applying for consent to conduct private prosecution should that become necessary.

A person conducting a prosecution under this section has the same powers to withdraw from the prosecution as a public prosecutor, as outlined in section 87 of the same code.

“It is not true that only the trial courts can grant leave to initiate private prosecution because that is only applicable in the trial courts exercising jurisdiction over a matter under Section 88 of the Criminal Procedure Code,” he said, dismissing DPP’s arguments.

Justice Muteti said the case will be held in abeyance by the Magistrate's court as the complainant engages the DPP within seven days of the decision to withdraw.

“The DPP shall exercise his power under Article 157(10) upon review of the victims' concerns and render a decision thereon which shall then be communicated to the trial Court on October 27, 2025. The trial court shall thereafter proceed with the matter as it shall deem appropriate after the parties revert with their respective positions. The bail terms granted by the lower court shall remain in force until the matter is heard and determined,” said Justice Muteti.

The court papers show that Mr Abdi allegedly intended to defraud Pansiba Limited of four parcels of land totalling 1.6 hectares in the Kya-Ng’ombe, Embakasi, Nairobi County.

In the trial that started in May 2024, he denied accusations of fraudulently amalgamating the four adjacent plots into two parcels and forging certificates of title purporting to be genuine documents issued by the Ministry of Lands and Physical Planning.

He was also accused of forging provisional approval forms dated April 4, 2006, which were used to effect the amalgamation and registration of the false certificates of title.

→ [email protected]