Acorn directors in court to block arrest

Acorn directors have moved to court to stop possible arrest and prosecution over the multi-billion shillings legal battle that pits Britam against its former senior managers.

Two directors—Edward Kiraithe and Peter Njenga—moved to court under a certificate of urgency, alleging that their rights to fair trial would be infringed if they were prosecuted with regard to a Sh3.94 billion civil case, which the listed company seeks to recover from its former senior executives.

In the case filed before High Court Judge George Odunga, Kiraithe, who is Acorn’s Chief Executive Officer and Njenga, who is the firm’s Operations Director, told the court the police had already started looking for them from last Friday with a view to arresting them.
The two, through their lawyer John Ohaga, told the court that, “If the arrest and prosecution of the applicants is allowed to proceed, the applicants would be put into extreme hardships, oppression and prejudice. Their right to a fair trial would be violated or severely compromised”.

The civil case has been filed by Britam against its former top managers who left the company in August. The investment company is accusing the former employees of allegedly defrauding the company of the money earlier this year. Edwin Dande (chief executive), Elizabeth Nkukuu (portfolio manager), Shiv Arora (investment analyst) and Patricia Wanjama (head of legal), all former British-American Asset Managers (BAAM) executives were accused of fraudulently transferring the money to bank accounts held by Acorn Group.

Mr Dande and his team are accused of wiring out of Britam Sh1.16 billion in five tranches to multiple accounts held by Acorn at Chase Bank and a further Sh2.78 billion to seven entities that are subsidiaries of Acorn. These transactions were alleged to have been made in July.

In the application seeking to stop their arrest and prosecution, the two submitted that there was a real likelihood and genuine apprehension that Acorn directors may be arrested at any time.
In the case where the DDP Keriako Tobiko and the Inspector General of Police David Kimaiyo are respondents, the court heard that the police had already arrested Wanjama, Nkukuu and Arora.

Several deals

Mr Ohaga argued that pursuing the two directors for prosecution was intended to score other motives and was in bad faith. According to Kiraithe in his affidavit, when Britam filed the civil suit, it had assured its investors that no monies had been lost. He argued that investment deals with Acorn had been approved by committee meetings including the structure of deals entered with their company (Acorn). He said with regard to the agreement entered into, the company got into several deals with third parties and that Britam provided the monies as they had agreed as per the shareholders agreement.

They now want the court to bar Kimaiyo, Tobiko and the CID from arresting them. However, Britam in its case filed by Fred Ngatia, says it unearthed the alleged fraudulent dealings at BAAM following a forensic audit by KPMG and law firm Coulson Harney. The civil suit filed by Britam is set to be heard today.