Supreme Court refuses to shield Cytonn boss Edwin Dande against prosecution in Ksh1B case
Three former British American Asset Managers Limited bosses and founders of Cytonn Investments Edwin Dande, Elizabeth Nkukuu and Patricia Wanjama have suffered a major blow after the Supreme Court rejected their bid to quash their prosecution over alleged theft of Ksh1 billion.
Chief Justice Martha Koome, justices Smokin Wanjama, Njoki Ndung'u, Isaac Lenaola and William Ouko threw out an appeal by the three seeking to stop their prosecution in connection to the complaint lodged against them by Britam in 2014 over alleged theft.
The trio had approached the Supreme Court to set aside the Court of Appeal's judgment that declined to block the Director of Public Prosecutions (DPP) and the police from arresting or harassing and charging them over the charges.
The Cytonn founders had argued that the charges are discriminatory and that their rights to a fair hearing were violated.
The Supreme Court judges while okaying their prosecution ruled that the proper path for them to follow is to face the charges at the Chief Magistrate’s court and let the court determine their innocence or guilt.
"The appellants’ appeal is one for dismissal and the proper path for them to follow is to face the charges at the Chief Magistrate’s Court and let that court determine their innocence or guilt. They have not persuaded us that they are entitled to any relief and we so find," ruled Koome.
The apex court also dismissed Dande, Nkukuu and Wanjama's arguments they have been denied the right to access information involving a forensic audit carried out by KPMG on Britam and a legal audit by Coulson Harney Advocates.
"Looking at the submissions by the appellants, while on one hand, they have identified the information required and the sources thereof, they have gone ahead to reach the incredible conclusion that the said information contains information that is adverse to them and is the sole basis for their arrest and prosecution. If that be so, of what benefit would an order of release be since they already purportedly know the contents of the KPMG report and the Legal Audit by Coulson, Harney, Advocates?" asked the court.
The judges ruled that Cytonn founders cannot force a private company to release their audit reports and classified information since it amounted to an invasion of their business secrets.
The judges observed that at the trial court, three will have the opportunity to interrogate all and any documents to be produced by the DPP.
"If those documents include the documents they now desire to have, they will have ample opportunity to study them and challenge their veracity. As it is, their request is misconceived and we have no hesitation in finding that the appellants were and are not entitled to the right to access to information under Article 35 (1)(b) of the Constitution," the judges ruled.
Britam against Cytonn bosses
During the hearing of the case, the British American Asset Managers Limited (BAAM), had informed the judges that three cytonn founders had obtained stay orders from the High Court stopping their prosecution.
Through lawyer Fred Ngatia, BAAM, argued that following the orders the trio were not charged
He added that there was no proof that the investigations, arrest and prosecution of Dande and his colleagues were an abuse of power, vexatious, oppressive or motivated by ill motive.
Ngatia urged the supreme court not to interfere with the Court of Appeal decision which found that the arrest and investigation were based on complaints made by BAAM and that the appellate court correctly appreciated the mandate of the police to investigate criminal complaints including those made by BAAM without undue interference.
"Since the appellants had therefore not subjected themselves to a trial, they could not demonstrate which right they intended to protect and how the requested information would assist in protecting the said right," said Ngatia.
The trio on their part contended that BRITAM’s ulterior motive in preferring charges against them was to frustrate them since they had set up business ventures in competition with the said company.
They further submitted that they did not derive any benefit from the funds involved, which in any event were recovered and therefore BRITAM lost nothing to warrant their prosecution.
Dande and his two colleagues resigned from Britam to form a rival company, Cytonn Investments Limited.
They were senior employees of BAAM, a subsidiary of British American Asset Managers Company (K) Ltd (Britam), responsible for Unit Trusts, discretionary Portfolios, cash management solutions, and alternative investments.
Dande was the Chief Executive Officer, while Nkukuu was the Senior Portfolio Manager and Wanjama was the Assistant Company Secretary.
Sometime in 2013 and during the course of their employment, BAAM entered into a joint-venture project with Acorn Group Limited (Acorn) for the development of real estate and other business ventures, within Nairobi County and elsewhere.
Acorn was to be responsible for the real estate development activities while BAAM was to be responsible for real estate finance and exit activities.
The case started in October 2014 when Britam Ltd made a complaint to the police alleging that the former managers had fraudulently misappropriated Ksh1,171,597,756 before resigning and starting the rival Cytonn Investment.
It is said the suspects made another withdrawal from Britam’s subsidiary in Mauritius totalling Ksh10 million without approval from the management.
This prompted the DPP to recommend their prosecution.
