A Nairobi court has dismissed an application by the prosecution seeking to withdraw a criminal case in which a company director is accused of stealing more than Sh356 million from his firm.
Milimani Chief Magistrate Rose Ndombi ruled that the case against Honey Khatwani, a director of Oki General Trading Limited, should proceed, finding that the prosecution had not provided sufficient grounds to justify its withdrawal.
Khatwani faces charges of stealing Sh356,711,174.40, which prosecutors allege came into his possession through his role as a director of the company. The alleged offence is said to have occurred on various dates between January 2020 and June 2024 at the company’s offices in Baba Dogo within Nairobi’s Ruaraka Constituency.
The prosecution had sought to terminate the proceedings under Section 87(a) of the Criminal Procedure Code, arguing that the dispute between the parties had also been the subject of a civil case and that efforts had been made to resolve the matter through a consent agreement.
In her ruling, Magistrate Ndombi held that the existence of a civil dispute was not, on its own, a sufficient reason to discontinue criminal proceedings. She cited Section 193A of the Criminal Procedure Code, which allows criminal and civil cases arising from the same matter to run concurrently.
The magistrate further observed that although the Director of Public Prosecutions has the authority to withdraw criminal cases, the power is subject to court approval and must be exercised in a manner that upholds the interests of justice and the public interest.
A major issue for the court was the prosecution’s indication that the withdrawal was linked to the refund of the money allegedly lost. The complainant, however, informed the court that no refund had been made and that Khatwani had failed to honour the terms of a consent agreement reached in the civil proceedings.
Ndombi noted that the court could not allow the withdrawal of the case based on a condition whose fulfilment had not been demonstrated.
She held that granting the application under those circumstances would undermine the interests of justice, as it would effectively allow a party to benefit from a settlement arrangement before complying with its terms.
The court consequently found that the prosecution had failed to establish adequate grounds for the withdrawal of the matter and dismissed the application.
The criminal case against Khatwani will now proceed before the Milimani Law Courts.
