By Andrew Kariuki
A Nairobi court has rejected an application by the prosecution seeking to withdraw a Sh356.7 million theft case against Oki General Trading Limited director Honey Khatwani, ruling that criminal proceedings should continue as the grounds advanced for termination had not been sufficiently justified.
Milimani Chief Magistrate Rose Ndombi on Tuesday declined the application made under Section 87(a) of the Criminal Procedure Code, finding that the circumstances presented before court did not warrant the exercise of discretion in favour of withdrawal.
Khatwani is accused of stealing Sh356,711,174.40 from Oki General Trading Limited, money prosecutors allege came into his possession by virtue of his position as a director of the company.
According to court documents, the alleged theft occurred on diverse dates between January 2020 and June 2024 at the company’s offices in Baba Dogo, Ruaraka Constituency. Khatwani has denied the charge.
In seeking to terminate the proceedings, the prosecution informed the court that the dispute between the parties had also given rise to civil proceedings and that efforts had been made to resolve the matter through a consent agreement.
However, the complainant opposed the application, arguing that they had neither been consulted nor informed of the intended withdrawal and maintained that terms of the alleged settlement had not been fulfilled.
The court observed that while the dispute had parallel civil proceedings, the existence of a civil case alone could not justify halting a criminal prosecution.
“The existence of a civil suit does not by itself justify termination of proceedings,” Magistrate Ndombi ruled, pointing to Section 193A of the Criminal Procedure Code, which permits civil and criminal cases to run concurrently.
The magistrate further emphasized that although the Director of Public Prosecutions possesses constitutional powers to terminate criminal proceedings, those powers are subject to judicial oversight and must be exercised in line with public interest, the administration of justice and the need to prevent abuse of the legal process.
“The requirement for judicial consent is not a mere formality,” the court held, adding that judges and magistrates must ensure prosecutorial decisions comply with constitutional and legal standards.
A key issue in the ruling was the prosecution’s indication that the intended withdrawal had been linked to a refund arrangement under a consent reached between parties.
The complainant, however, insisted no refund had been made and that the accused had not complied with the terms of the agreement — a position the court noted had not been controverted.
Ndombi found that the court was being asked to terminate criminal proceedings based on a condition whose performance had not been demonstrated.
“If the court were to allow the withdrawal under such circumstances, it would effectively sanction the benefit of a settlement process before the performance of the very condition upon which the withdrawal was premised,” the magistrate ruled.
“In the court’s view, such an outcome would not serve the interests of justice.”
The court additionally allowed a request for investigations into allegations that the accused may have knowingly made false representations before court, directing the Directorate of Criminal Investigations (DCI) to inquire into the matter and take lawful action where necessary.
However, the magistrate clarified that no finding had been made that Khatwani committed perjury or any other offence, noting that any determination would only arise following investigations and, where appropriate, separate proceedings before a competent court.
Following the ruling, the criminal case against Khatwani will proceed before the Milimani court.
