Tobiko denies he is a stumbling block in Tatu City case

The Director of Public Prosecutions has scoffed at allegations that he was a stumbling block in the cases pitting foreign shareholders against their local partners over the ownership and control of the vast Tatu City business empire.

Mr Keriako Tobiko, in a court filing on Monday, asked a trial court to dismiss a request by former CBK governor Nahashon Nyaga, his lawyers and co-petitioners to have him compelled to give an appraisal of a recommendation for the prosecution of the foreign investors.

The petitioners, including their lawyers Nelson Havi and Michael Osundwa, are also challenging their prosecution in the matter after being linked to alleged fraudulent transfer of shares and directorship of a company under the Tatu city umbrella.

They had accused the DPP of indolence and acting under the influence of a close associate, senior counsel Ahmednasir Abdullahi, who represents Stephen Armstrong Jennings and Robert Reid in the protracted court case, to delay their prosecution even after the Directorate of Criminal Investigations (DCI) had already forwarded his findings and a recommendation for prosecution.

State counsel Edwin Okello, however, in a replying affidavit filed at the High Court in defence of the DPP, says the seeming delay was brought about by two conflicting findings that gave rise to the “need for a further inquiry.”

Initially, there was a recommendation to prosecute Mr Nyaga, his lawyers and co-petitioners over alleged fraudulent transfer of shares and directorship, effected by Havi and Company advocates, of Purple Saturn properties, an off-shoot of the giant Tatu City project.

The recommendation was lodged in an inquiry file number 40 before a new inquiry file number 77 surfaced that then recommended the prosecution of Mr Jennings and his associates.

“I am aware that on March 14 the DCI raised the issue of two inquiry files; investigations are still ongoing and the DPP is yet to make a final decision regarding the matter,” Mr Okello says.

He said the complaints in inquiry file number 77 of 2015 relates to the presentation of alleged forged documents to the registrar of companies for change of shareholding and directorship in Purple Saturn Properties while inquiry file number 40 of 2015 relates to alleged fraudulent transfer of shares.

The recommendation in inquiry file no 77 of 2015 "is to charge the complainants in inquiry file number 40 of 2015 with the offence of making a false document while in inquiry file number 40 of 2015 the recommendation by the DCI is to charge the complainants in inquiry file number 77 with the offence of conspiracy to defraud contrary to section 317 of the penal code."

He said that Mr Nyagah, Mr Havi and their co-petitioners cannot be supplied with appraisals as they are criminal suspects in the case.

“The applicant as well as his advocates and their co-petitioners are criminal suspects who have been recommended to be charged in inquiry file number 40 and the disclosure prayed for would be highly prejudicial and likely to undermine the integrity of the on-going investigations as well as the ultimate decision of the DPP,” Mr Okello states.

Regarding allegations that the DPP has been acting under the direction of Mr Abdullahi, the State counsel said those claims are frivolous and only intended to scandalise and “exert undue pressure on his office.”

He also called Mr Havi’s application mischievous, saying that when the time came for the hearing of the petition on April 7, Mr Havi, the first petitioner, filed a notice of change of advocates thus effectively scuttling the hearing.

Mr Okello also said that the DPP cannot act on inquiry file number 40 since the parties obtained court orders barring prosecution until the petition they lodged at the High Court was heard and determined.

“It is self-evident that there are two inquiry files over the same subject matter; the said findings and recommendations partly arise from conflicting document examiners' reports prepared by two different examiners, one in respect of inquiry 40 of 2015 and another in respect of inquiry 77 of 2015,” the affidavit reads.

The DPP has referred the two conflicting files to a multi-agency team on investigation and prosecution of corruption and economic crimes.

The case is pending determination before Justice Joseph Onguto.