The Appellate court has declined to stop the trial of two directors of a Chinese company that constructed the Sh4.1 billion Lake Basin Mall in Kisumu in which the prosecution alleges its cost was inflated to defraud taxpayers.
Three judges of the Court of Appeal ruled that although Zeyun Yang and Zhang Jing, the directors of Erdemann Property Ltd had an arguable appeal, they failed to show how they will be prejudiced if the trial is not stopped.
The directors had claimed the criminal charges were meant to punish them for pursuing payment of Sh645 million. They also said the matter was a commercial dispute, which was governed by an arbitration clause, in case of a disagreement.
“We find that the applicants are simply jumping the gun, as other than mere speculation, they have not demonstrated any exceptional circumstances to justify interference with the criminal prosecution,” Justices Daniel Musinga, Hannah Okwengu and Jamila Mohammed ruled.
The judges said the magistrate presiding over the case has the obligation of ensuring that they get a fair trial. They added that the two directors can file an appeal if they were not satisfied with the decision of the magistrate or the High Court.
The duo were charged together with former Lake Basin Development Authority chairman Onyango Oloo, former LBDA managing director Peter Abok, and the authority’s board members. They all denied charges of conspiracy to defraud.
The prosecution says the construction of the mall was inflated but the Chinese contractors maintain their innocence.
They challenged their prosecution arguing that the Director of Public Prosecution (DPP) Noordin Haji was abusing his powers because the matter was a commercial dispute.
They also claimed the case was brought to humiliate and embarrass them and also put them through unnecessary expenses and agony while threatening their liberty and disparaging their business.
In the trial, the prosecution alleges that the directors of the Chinese company bribed the board to overlook the procurement process.
The company was contracted by LBDA in April 2013 to construct the retail mall which also included a three-star hotel and showroom for commercial use.
The Ethics and Anti-Corruption Commission (EACC) and DPP have maintained that the case was a matter of public interest involving a public-funded body and that there were claims of corruption involving LBDA officials, who were allegedly bribed to approve the contract.
The commission said the contract was marred with irregularities including an inadequate feasibility study report, approvals were not obtained and the project lacked a strategic plan of the Authority.
