Mombasa businessman Ashok Doshi and his wife have lost a case in which they sought to permanently restrain the police and Director of Public Prosecutions from arresting and charging them over alleged fraud relating to a prime parcel of land in Nairobi.
Justice Eric Ogola dismissed a petition filed by Mr Doshi and his wife Pratibha, saying it had not been proved to the standards required by law, it lacked merit and orders sought could not be granted.
“In the instant petition, the petitioners are threatened with arrest and arraignment over allegations of fraudulent acquisition of a private property and failure to pay lawful stamp duty, these are not issues which this court can decide,” said Justice Ogola.
The judge added that there is a criminal court that will conduct a trial during which the petitioners will defend themselves and receive a fair hearing.
He said that to purport to stop the prosecution of the petitioners would appear to visit an injustice and to impair another right -- the right of Greenview Lodge Ltd, an interested party in the case, to know the outcome of the allegations of fraud in a fair and procedural criminal forum provided for by law.
The Doshis told the court that they are registered owners of the land on Processional Way, Nairobi, originally owned by Greenview Lodge Ltd, which sold it to Magnum Properties Ltd before it was transferred to them in 2018 for Sh150 million.
The petitioners had sued the DPP, Director of Criminal Investigations, Inspector General of Police and the Attorney General. Greenview Lodge Ltd was an interested party in the case.
They argued that despite having sold the land to Magnum Properties Ltd, Greenview Lodge Ltd and its director, Ms Jennifer Nthenya, have lodged numerous complaints to various government institutions.
The petitioners claim that Greenview Lodge Ltd and Ms Nthenya, in their complaints, allege that the land was fraudulently transferred to Magnum Properties Ltd and subsequently to them (petitioners) and that stamp duty was not paid.
According to the petitioners, the complaints have been investigated by various government agencies, including the police and DPP, who found them to be unfounded.
The petitioners argued that by seeking to arrest, prosecute and pursue the same complaints which had been investigated and dropped as being unfounded, the respondents have breached their constitutional rights.
The DPP opposed the petition, saying orders sought by the couple were premature, and there was no evidence that together with the police they intend to maliciously investigate, arrest and charge them arbitrary.
For its part, Greenview Lodge told the court that it is the legitimate proprietor of the land, which it was allocated by the government in 1986.
According to the company, by July 1992, it had paid Sh1,050,000 towards liquidation of the allocation fees, but following the death of one of its directors, Ms Nthenya was forced to look for a prospective purchaser for the land.
The court heard that Ms Nthenya identified a prospective purchaser in Mr Doshi, through his company Magnum Properties Ltd. She said Mr Doshi persuaded her to use his lawyer to act for both of them in the intended transaction for the proposed purchase of the land for Sh120 million.
She said that the intended purchase did not go through as they did not receive the Sh120 million intended selling price, yet in fraudulent circumstances, Magnum Properties Ltd purported to obtain a grant over the land, yet it was not the allottee of the land from the government.
Greenview Lodge Ltd told the court that the matter has received extensive and lengthy investigations by internal departments of the Ministry of Lands and Settlement, the National Land Commission and other government agencies making findings that the purported transfer to Magnum Properties was unprocedural, irregular and fraudulent.
According to the company, the petition by the businessman and his wife was incompetent and ought to be dismissed.
The petitioners had also sought a declaration that any intended summonses, arrest, charges, prosecution, questioning, investigation, harassing and intimidation against them on account of any alleged criminal offences or fraud relating concerning the land was unconstitutional, violates their constitutional rights and is an abuse of the criminal justice system.