Cytonn directors fail to stop prosecution in Sh1 billion theft case

Former employees of Britam Limited and their breakaway company have failed to stop their prosecution over alleged stealing of Sh1 billion.

The Supreme Court dealt the final blow to Edwin Dande, Elizabeth Nkukuu, Patricia Wanjama and Cytonn Investment Limited stating that they failed to prove their arrest and prosecution was perpetuated for ulterior motives or amounted to an abuse of the court process or office.

"The proper path for them to follow is to face the charges at the Chief Magistrate's Court and let that court determine their innocence or guilt. They have not persuaded us that they are entitled to any relief to warrant stopping the prosecution," ruled the judges.

Chief Justice Martha Koome alongside Judges Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko also dismissed almost dismissed the former employees' application to be supplied by classified information and audit report that led to the charges.

The judges ruled that they cannot force a private company to release their audit reports and classified information since it amounted to invasion of their business secrets.

In any case, they ruled that the ex-employees will have a chance to interrogate the reports which will be used as part of evidence in their prosecution.

"They will have opportunity at the trial court to interrogate all and any documents to be produced by the prosecution. If those documents include the documents they now desire to have, they will have ample opportunity to study and challenge their veracity," ruled the judges.

The disputes started in October 2014 when Britam Ltd made a complaint to the director of criminal investigations alleging that the former managers had fraudulently misappropriated Sh1,171,597,756 before resigning and starting the rival Cytton Investment Ltd.

At the time of their resignation, Dande was the managing director; Ms Nkukuu was the portfolio manager while Ms Wanjama was the head of legal and assistant company secretary.

According to the investigations, the suspects made another withdrawal from Britam's subsidiary in Mauritius totalling Sh10 million without approval from the management.

The Director of Public Prosecution approved the charges but the three moved to the High Court but failed o stop their prosecution. The court however ruled that they had a right to access the audit report and classified information that led to the charges.

However, they appealed at the High Court where there bid to stop the prosecution was affirmed and the court declined to allow them access the classified information.

It was the decision they appealed at the Supreme Court but the apex court reiterated that the DPP and the Director of Public Prosecution did not violate their rights by commencing the prosecution.

"A perusal of the record confirms that even though they alleged abuse of power by the police, no evidence was brought to prove the claims or that the actions amounted to abuse of office. The claim that they acted at the behest of Britam was merely speculative," ruled the judges.

The judges added that it will be unlawful to allow the three to access internal working documents, particularly internal investigation reports which may affect the rights of parties not involved in litigation such Britam's clients.