A Nairobi court has declined an attempt by the prosecution to terminate a criminal case in which a company director is accused of stealing more than Sh356 million from a firm he helped manage.
Milimani Chief Magistrate Rose Ndombi ruled on Tuesday that the case against Honey Khatwani, a director of Oki General Trading Limited, should proceed to hearing.
Khatwani is facing charges of stealing Sh356,711,174.40 from the company. The prosecution alleges that he obtained the money by virtue of his position as a director.
According to court documents, the alleged theft occurred on various dates between January 2020 and June 2024 at the company’s offices in Baba Dogo within Ruaraka Constituency.
The accused has denied the charge.
The ruling followed an application by the prosecution seeking to withdraw the case under Section 87(a) of the Criminal Procedure Code.
In court, the prosecution argued that the dispute between the parties had also been the subject of civil proceedings and that efforts had been made to resolve the matter through a consent agreement.
However, Magistrate Ndombi held that the existence of a civil dispute alone could not be used as a basis for ending a criminal prosecution.
She noted that Section 193A of the Criminal Procedure Code allows civil and criminal proceedings to continue simultaneously without one affecting the other.
The magistrate further observed that although the Director of Public Prosecutions has the constitutional mandate to discontinue criminal cases, the court must be satisfied that such a decision serves the interests of justice and does not amount to an abuse of the legal process.
She emphasized that judicial approval for withdrawal of criminal proceedings is a substantive safeguard and not merely a procedural requirement.
A major issue considered by the court was the prosecution’s indication that the intended withdrawal was linked to the refund of the disputed funds.
The complainant opposed the application, arguing that no refund had been made and that the accused had not fulfilled obligations contained in the consent agreement reached in the civil matter.
Ndombi said the court could not ignore the fact that the condition relied upon to justify withdrawal had not been confirmed as having been met.
She found that allowing the application under those circumstances would effectively grant the benefit of a settlement before proof of compliance with its terms.
The court concluded that such an outcome would not promote the interests of justice.
Consequently, the magistrate found that the prosecution had failed to establish sufficient grounds to warrant withdrawal of the case.
The application was dismissed, paving the way for the criminal proceedings against Khatwani to continue before the court.
