A Nairobi court has declined an application by the prosecution to withdraw a Sh356.7 million theft case against a company director, finding that the grounds advanced for terminating the proceedings had not been sufficiently established.
Milimani Chief Magistrate Rose Ndombi on Tuesday ruled that criminal proceedings against Honey Khatwani, a director of Oki General Trading Limited, should proceed in accordance with the law.
Khatwani is charged with stealing Sh356,711,174.40 from Oki General Trading Limited, money alleged to have come into his possession by virtue of his position as a director of the company.
According to the charge sheet, Khatwani allegedly stole the funds on diverse dates between January 2020 and June 2024 while serving as a director of the firm based in Baba Dogo, Ruaraka Constituency.
He has denied any wrongdoing.
The ruling arose from an application by the prosecution seeking to withdraw the case under Section 87(a) of the Criminal Procedure Code.
In considering the application, Magistrate Ndombi noted that the prosecution had informed the court that there existed a civil dispute between the parties and that efforts had been made to resolve the matter through a consent agreement.
However, she observed that the existence of a civil case did not automatically warrant the termination of criminal proceedings.
“The existence of a civil suit does not by itself justify termination of the proceedings,” the magistrate said.
She pointed to Section 193A of the Criminal Procedure Code, which expressly provides that civil and criminal proceedings may run concurrently.
Ndombi further noted that while the Director of Public Prosecutions has constitutional powers to withdraw criminal proceedings, the exercise of that authority is subject to judicial oversight and must be guided by the public interest, the interests of justice and the need to prevent abuse of the legal process.
“The requirement for judicial consent is not a mere formality,” she said, adding that courts are obligated to ensure prosecutorial decisions remain within the confines of the law.
A key factor in the court’s decision was the prosecution’s indication that the intended withdrawal was conditional upon a refund of the allegedly stolen money.
The complainant, however, maintained that no refund had been made and that Khatwani had not complied with the terms of the consent agreement reached in the civil matter.
Ndombi said the court was confronted with a situation where withdrawal was being sought on the basis of a condition whose fulfilment had not been confirmed.
“If the court were to allow the withdrawal under such a constraint, it would effectively sanction the benefit of a settlement process before the performance of the very condition upon which the withdrawal was claimed,” she ruled.
“In the court’s view, such an outcome would not serve the interests of justice.”
The magistrate consequently found that sufficient grounds had not been established to warrant withdrawal of the case and declined the application.
“The court is therefore not persuaded that sufficient grounds have been established to allow the case,” she ruled.
As a result, the criminal proceedings against Khatwani will continue before the court.