, NAIROBI, Kenya, May 26 – Goldenberg chief architect Kamlesh Pattni and former Treasury Permanent Secretary Wilfred Koinange have lost a bid to terminate a case in which they are accused of conspiring to steal Sh5.8 billion from the Treasury.
Nairobi Chief Magistrate Gilbert Mutembei on Wednesday declined to acquit Mr Pattni despite an agreement entered between him and the Central Bank of Kenya (CBK) on April 29, 2008.
Mr Pattni had argued that under section 204 of the Criminal Procedure Code, the court was obliged to acquit him because CBK had agreed to drop all complaints against him if he handed back the Grand Regency now (Laico Regency) hotel to the bank.
The court said it would only allow his application if the CBK files a formal application to withdraw the complaint.
“For the court to acquit the accused under that section, the complainant has to file a formal application to withdraw its complaint giving satisfactory reasons why he should to do so,\’\’ Mr Mutembei ruled.
“In the present case, the complainant has not made such an application. The orders which the accused seeks cannot be granted,\’\’ he ruled.
On Mr Koinange\’s application, Mr Mutembei said that charges against him cannot be dropped simply because CBK as a complainant has never appeared in court for the hearing of the case.
The magistrate said the court can only acquit him for failure by CBK to attend hearing after having been notified of the time, place and where the case will be heard.
“The acquittal can only be granted on the particular day when the case is to be heard and the court adjourns the case following non-attendance of the complainant. I therefore find no merit on the application by the second accused and dismiss it,” ruled the magistrate.
The CBK has maintained that it cannot choose to drop charges against Mr Pattni despite the fact that he handed back the hotel to the bank as that does not mean he has no criminal liability.
Mr Pattni and Mr Koinange have been accused alongside former CBK deputy governor Eliphaz Riungu and former Kenya Commercial Bank general manager Elijah arap Bii for sanctioning three contentious transactions from the Treasury to Goldenberg International.
They have denied the charges and are out on a bond of Sh10 million each with two sureties of similar amount.
The offences were committed between April 19 and July 7, 1993. The case will now start afresh before Mr Mutembei for six consecutive days beginning August 24.