Pay-television firm Multichoice Kenya Limited has received the Court of Appeal’s approval to pursue a Supreme Court challenge in a dispute involving criminal prosecutions of architects and contractors arising from a Sh895 million collapsed commercial construction project.
The approval followed a ruling allowing the company to file a late application seeking permission to escalate the dispute to the apex court. The Court of Appeal held that Multichoice had satisfactorily explained why it missed the initial deadline for filing the certification application.
Multichoice intends to challenge a January 2025 Court of Appeal judgment that upheld the continuation of criminal proceedings linked to the construction dispute. The ruling clears the way for the firm to argue that the case raises issues of “general public importance,” particularly on the scope of prosecutorial powers and the interpretation of Section 193A of the Criminal Procedure Code.
Section 193A allows criminal and civil proceedings to run concurrently, a principle that lay at the heart of the January decision.
The legal battle stems from the construction of an office block along Oloitoktok Road in Kileleshwa, Nairobi. The project, commissioned by Multichoice, was terminated after concerns emerged over the building’s structural integrity, including cracks and sagging floors.
The contractor later lodged complaints alleging falsified professional reports, triggering arbitration, civil claims, police investigations and criminal charges against some of the architects and engineers involved. The criminal case centred on allegations that the structural integrity assessment for the proposed office block had been altered.
In 2022, the affected professionals moved to the High Court, arguing that the investigations and prosecutions were an abuse of process intended to influence parallel civil and arbitral proceedings. The High Court dismissed the petition and allowed the criminal case to proceed.
Multichoice argued that the criminal process was being used to exert pressure in what it viewed as a commercial dispute already subject to civil litigation and arbitration. In January 2025, the Court of Appeal rejected that argument and upheld the High Court’s decision.
The appellate court found no abuse of prosecutorial power, holding that criminal proceedings could continue alongside civil claims. It ruled that Section 193A permits parallel criminal and civil processes unless there is proof of abuse of power or ulterior motives, neither of which had been established.
“We are of the considered view that both the civil suit and the criminal proceedings can be pursued concurrently in this matter. It has not been demonstrated to us satisfactorily that there was an ulterior motive in the institution of the criminal case,” the bench ruled.
That decision now forms the basis of Multichoice’s intended appeal to the Supreme Court. The company argues that the case raises issues of general public importance, including the limits of prosecutorial discretion and the proper application of Section 193A.
The application for certification was required to be filed within 30 days of the January judgment, but Multichoice lodged it about 45 days late. The firm told the court that the delay was caused by difficulties in obtaining board instructions from its shareholder, MultiChoice Africa Holdings, which was out of the country, as well as exceptional personal circumstances affecting one of its lead lawyers.
“I do not consider [the delay] to be inordinate,” the Court of Appeal judge said, adding that the reasons advanced were “plausible and reasonable” in the circumstances.
With the time extension granted, Multichoice has been directed to file its application within 30 days. If the Court of Appeal certifies that the matter raises issues of general public importance, the dispute will proceed to the Supreme Court, where a final ruling could shape how criminal prosecutions intersect with complex civil commercial disputes in Kenya.
