A Nairobi court has declined an application by the prosecution to withdraw a Sh356.7 million theft case against Honey Khatwani, a director of Oki General Trading Limited, ruling that the grounds presented were insufficient to justify terminating the proceedings.
Delivering the ruling on Tuesday, Milimani Chief Magistrate Rose Ndombi ordered that the criminal case proceed in accordance with the law. The prosecution had sought to withdraw the case under Section 87(a) of the Criminal Procedure Code, citing the existence of a related civil dispute and efforts by the parties to resolve the matter through a consent agreement.
However, Magistrate Ndombi held that the existence of a civil suit was not sufficient grounds to halt criminal proceedings, noting that Section 193A of the Criminal Procedure Code allows civil and criminal cases to run concurrently.
“The existence of a civil suit does not by itself justify termination of the proceedings,” the magistrate ruled.
She further emphasized that although the Director of Public Prosecutions has constitutional authority to withdraw criminal cases, such decisions require judicial approval and must be guided by the interests of justice, public interest, and the need to prevent abuse of the court process.
A major issue for the court was the prosecution’s indication that the withdrawal was contingent upon the refund of the allegedly stolen funds. The complainant opposed the application, arguing that no refund had been made and that Khatwani had failed to comply with the terms of the consent agreement reached in the civil case.
Ndombi found that allowing the withdrawal before confirmation of the refund would undermine the interests of justice.
“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 stated.
Consequently, the court ruled that sufficient grounds had not been established to warrant withdrawal of the case and dismissed the application.
As a result, the criminal proceedings against Khatwani will continue before the Milimani Law Courts.
