The Supreme Court has ruled that Cytonn CEO Edwin Dande’s appeal in the apex court is properly in court, consequently throwing out Britam’s objection of the appeal arguing they had no jurisdiction.
In the appeal, Dande among three others had argued that in a criminal case against them in a lower court, the Directorate of Public Prosecutions (DPP) had violated their constitutional rights. The four argued that the decision to arrest them and charge them in court over an alleged loss of Ksh1 billion while they were working for Britam was an abuse of power by the DPP, contrary to article 157 of the constitution.
In its ruling, the Supreme Court said that the matter was properly in the court since it touches on matters of Constitutional interpretation, a matter vested upon the Supreme Court according to article 163 of the Constitution.
“Being of the view that the appeal before the Court of Appeal and its determination dealt squarely with the interpretation of Article 157 of the Constitution, this appeal, we declare, is properly before the Court in terms of Article 163(4)(a) of the Constitution,” the Supreme Court ruled.
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In their submissions which did not suffice, Britam through lawyer Fred Ngatia argued that Dande’s appeal revolved around the exercise of power by the DPP, and no issues of constitutional interpretation or application of the constitution were raised for determination by the court.
“The Appeal did not raise any constitutional issues for determination by the Court neither did the Appeal involve the interpretation or application of the constitution,” said Ngatia.
“Indeed, the dispute adjudicated upon by both the High Court and the Court of Appeal revolved around the question whether the DPP acted “independently in instituting the criminal case against the Applicants or was it orchestrated by ulterior motives.” No issues were raised both at the High Court and the Court of Appeal relating to the interpretation or application of the Constitution.”
The court however declined to issue orders against the magistrate’s court saying it can only issue orders against the Court of Appeal saying “under Article 163(4) of the Constitution and Sections 15, 16 and 17 of the Supreme Court Act, only an appeal from the Court of Appeal can be entertained by the Supreme Court, as of right if it involves the interpretation or application of the Constitution or where it is certified that a matter of general public importance is involved.”
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The Ksh1.1 billion case concerns payments allegedly authorised by Dande, Elizabeth Nkukuu, Shiv Arora and Patricia Wanjama to the Acorn Group, leading to the loss of funds for Britam. The four worked for Britam, before resigning to form Cytonn.
In their argument through Prof. Tom Ojienda Advocates, however, the four said that Britam had a 25 percent stake and/or ownership of Acorn Group Limited for purposes of jointly carrying out the development projects and as such asserted direct control of all the funds that were disbursed to the special purpose vehicles.
“The Petitioners had no stake and/or control over the monies that were disbursed to the Special Purpose Vehicles as all the disbursed monies were and remained under the direct custody and control of Britam at all material times. All disbursements to the Group were under the joint control of Britam and Acorn Group Limited as the monies were co-managed by Acorn Group Limited and the 3rd Respondent (Britam) and not the Petitioners,” the four said in written submissions to the court asserting that the suit by Britam was just a malicious effort to taint their names.
According to them, the charges of theft by servant were based on non-existent and fictitious KPMG forensic audit Report and legal Audit Report by Coulson Harney & Company Advocates.
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To date, Britam has failed or refused to produce the alleged forensic report in outright contempt of the court order issued in Petition No 539 of 2016 Edwin Harold Dawn Dangle & Others -v- British American Investments Co. (It) Ltd & Another.
“There was no factual basis upon which the prosecution was premised on and the 1st Respondent (DPP) was therefore motivated by extraneous factors to prosecute the Petitioners as there is no forensic and/or audit report to back the alleged loss of funds by the 3rd Respondent. The Petitioners were not shareholders or signatories of Acorn Group Limited and therefore had no personal benefit whatsoever from the monies that were transferred to Acorn Group Limited,” they further argued.
The appeal in the Supreme Court proceeds and will be mentioned on May 27, 2022.
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