Milimani Law Courts Magistrate Carolyne Mugo has rejected an attempt by the Office of the Director of Public Prosecutions (ODPP) to withdraw a high-profile fraud case involving businessman Jayesh Kumar, accusing the prosecution of acting in secrecy and disregarding the rights of the complainant.
Kumar stands accused of masterminding a complex fraud scheme that allegedly defrauded Prime Bank Limited of Ksh 706,989,273. The charges against him include fraud, mishandling mortgaged property, illegally operating a company under administration, and failing to cooperate with a court-appointed administrator.
The ODPP had filed an application seeking to terminate the case, but the move faced stiff opposition from the complainant’s legal team, which argued that the decision was made without involving or consulting the complainant.
In her ruling, Magistrate Mugo noted that the hearing initially began in June 2021 with four accused persons. The charges were later amended in July 2024, removing two complainants from the charge sheet. While efforts to extradite Kumar who resides in the UK were underway, the ODPP moved to withdraw the charges without notifying the court of any review process following a formal request from the complainant.
Magistrate Mugo criticized the prosecution for the timing of the withdrawal application, which came just two days before the scheduled hearing. She pointed out that the prosecution had conducted a pretrial with two witnesses on June 9, 2025, and had even directed them to appear in court for the hearing set for June 11.
“In fact I dare say, the whole application was shrewd in secrecy since two days prior to the hearing on the June 9, 2025 the prosecution actually conducted a pretrial with two witnesses and notified them to attend court for the hearing and indeed on the 11th of June 2025 the two witnesses were in court ready to proceed when the rag was pulled over their feet and the application for withdrawal was made…” Ruled Magistrate Mugo.
The Magistrate questioned whether the complainant had any rights before a case could be withdrawn, emphasizing that under Kenyan law, victims are not passive participants in criminal proceedings.
“Victims are no longer mere spectators. Their rights are enshrined in Article 50 of the Constitution and further protected under the Victim Protection Act,” she said.
She added that victims play an essential role in the justice process and must be consulted at all stages, especially in decisions involving the withdrawal of charges.
The court concluded that the prosecution failed to provide sufficient reasons for discontinuing the case and made no effort to involve or notify the complainant. Consequently, the application to withdraw the charges was dismissed
