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Reprieve for Tatu City as court revives criminal case against Kenyan partners

Tatu City is located in Kiambu County.

NAIROBI, Kenya May 10 – The owners of the Sh240 billion Tatu City project have succeeded in reviving the eight-year old criminal case against pioneer partners Stephen Mbugua Mwagiru and his mother Rosemary Wanja Mwagiru.

The parent company, Tatu City Ltd and its main subsidiary Kofinaf Company Ltd, convinced the Court of Appeal that High Court Judge Mumbi Ngugi should not have blocked the prosecution of the Mwagirus and lawyer Robert Githu for forgery and making false documents.

Appellate Judges Wanjiru Karanja, Patrick Kiage and Fatuma Sichale ruled that Justice Ngugi “was plainly wrong” and “committed a reversible error of law” when she shielded the trio from facing justice,

It was against public interest and offensive to the criminal justice system for the accused persons to seek protection without demonstrating compelling reasons to justify exemption from prosecution,” the three-Judge bench pointed out in the 31-page judgment read by Justice Sichale.

The two firms, represented by Senior Counsel Ahmednassir Abdullahi, were aggrieved by Justice 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.

The trio was alleged to have forged a report by Assistant Registrar of Companies, Wilson Gikonyo, on June 11, 2010 that was used to register caveats on nine prime properties belonging to the firms. The Mwagirus had claimed to have been the sole shareholders and directors of Tatu City Ltd, which was previously known as Waguthu Holdings (K) Ltd, and applied to block any transactions on the land.

Ahmednassir had argued there were no valid reasons and justification to terminate the criminal case, which was instituted on December 6, 2010 since Justice Mumbi did not exonerate the accused persons from criminal liability regarding the contentious Companies Registry form used to register the blockade. The caveats were eventually removed administratively although the Director of Public Prosecutions (DPP) is at liberty to re-open the cases, he said.

Ahmednassir recalled that Justice Fred Ochieng had dismissed an application by the three persons for conservatory orders on October 24, 2011 for lack of sufficient evidence to demonstrate that the DPP or the police were acting under the influence of interested parties in filing the criminal case.

The Mwagirus ceased to be directors of Waguthu Holdings (now Tatu City Ltd) from March 4, 2009 and transferred all their shares, except one, to Cedar IV Ltd. Similarly, they resigned as Tatu City board members.

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Senior Counsel Kamau Kuria had protested that the criminal case was meant to coerce and intimidate the Mwagirus to withdraw two commercial disputes in which they were seeking the winding up of the companies. The DPP was working in cahoots with foreign investors to exert illegal pressure on the Mwagirus to remove the caveats, he had claimed.

Dr Kamau maintained that the two companies had no right of appeal after the DPP had chosen to drop the case following the court’s intervention. “This is an academic exercise. The DPP works independently and has not filed an appeal,” he had said.

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