A court has allowed an appeal by owners of Sh240 billion Tatu City to pursue criminal charges against two pioneers of the project.
Tatu City and its main subsidiary Kofinaf filed an appeal in 2013 challenging a decision to stop the prosecution of Rosemary Mwagiru, her son Stephen Githui, who were minority shareholders in the two companies, and Robert Githui, their advocate.
This was after the two firms felt aggrieved by High Court judge Mumbi Ngugi’s decision delivered on November 12, 2013, stopping the two-count indictment against the three on the basis that it amounted to an abuse of the court process.
Court of Appeal judges Wanjiru Karanja, Patrick Kiage and Fatuma Sichale ruled that the mere co-existence of criminal and civil claims cannot be a justification for a court to halt the criminal proceedings.
“The pleadings in the civil cases and the charge sheet in the criminal case were clear and unequivocal in their terms,” the judges ruled.
The three judges noted that there was a genuine and valid complaint and evidence, including a document examiner’s report, to support the decision to charge the petitioners with the criminal offence of forgery, and the same was done in good faith.
“The upshot is that this appeal succeeds. The decision of High Court is set aside and substituted by an order dismissing the petition with costs,” they ruled.
Mwagiru, her son and the lawyer were accused of forging a report by the Assistant Registrar of Companies on June 11, 2010, that was used to register caveats on nine prime properties belonging to the firms.
The trio had been arraigned before the chief magistrate’s court in Nairobi where they were accused of forgery.
Mwagiru faced an additional charge of uttering a false document.
Justice Ngugi made an order prohibiting the criminal proceedings and restrained the Tatu City owners from instituting criminal proceedings against the three in relation to a caveat they had lodged at lands office.
The trio had in October 2010 sought to stall Tatu City by placing caveats on land owned by international investors.
In January 2013, the court ruled that Mwagiru was “acting unreasonably” by filing caveats and that any dispute she had with Tatu City should be pursued in the London Court of International Arbitration.
In February 2018, the London Court ruled that Mwagiru and her partners, Vimal Shah (Bidco) and Nahashon Nyagah (former Central Bank chairman) defrauded the international owners of Tatu City. The court awarded USD 17 million (KES 1.7 billion) to international investors. Mwagiru, Shah and Nyagah are yet to pay the amount.
Meanwhile, the police investigation concluded that Mwagiru and her son submitted a forged document to the court to attempt to prove ownership of Tatu City. In 2011, Githui filed an application in an attempt to stall criminal charges of forgery against them. An application the High Court allowed.
