A fresh attempt to halt the prosecution of businessman Benson Sande Ndeta has emerged, with three parties seeking to be enjoined in proceedings linked to the high-profile Sh4.5 billion fraud case.
The application, filed under a certificate of urgency by lawyer Danstan Omari, seeks to have John Gachanga Kaiganaine, a director at Savannah Cement, alongside Donald Kiboro Mwaura and Savannah Heights Limited, joined as interested parties in the matter.
Ndeta is facing multiple charges, including conspiracy to defraud, forgery and obtaining credit by false pretences, in a case arising from the alleged fraudulent acquisition of a multi-billion shilling loan.
According to court documents, the intended interested parties argue that they have a direct and substantial stake in the proceedings and that their participation will assist the court in arriving at a just and informed determination.
They further contend that the latest application seeking to stay the criminal proceedings raises issues that have already been conclusively determined by the High Court.
In particular, they point to a previous ruling by Bahati Mwamuye, who dismissed a similar bid to halt the prosecution, finding that the Office of the Director of Public Prosecutions acted within its constitutional mandate and was guided by sufficient evidence and public interest.
The applicants now argue that the current move amounts to an abuse of the court process and an attempt to re-litigate matters that have already been settled.They also maintain that reliance on a separate civil case involving Savannah Heights Limited is misplaced, noting that civil proceedings do not determine criminal liability.
At the same time, Omari faulted the Directorate of Criminal Investigations (DCI) for allegedly failing to comply with court orders requiring disclosure of key documents.
“The learned court gave two orders to the DCI to supply the complainant with witness statements and documents that they wanted, to date the DCI has never complied. Yet the DCI and the complainant are acting together. The complainant is not an accused person, therefore should be issued with the documents they require,” said Omari.
He further told the court that orders had also been issued directing the Central Bank governor to supply documents to the complainant for use in the proceedings.
“The governor of Central Bank was given an order to issue to the complainant the documents they need so that they use it in court,” he added.
The applicants argue that no prejudice will be suffered if the joinder is allowed, but warn that excluding them would occasion grave injustice.
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