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The man, Kariuki, argues that he was not accorded a fair hearing in the proposed alleged accusations.
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He sought declarations that the investigation and intention to prosecute him was discriminating and infringed his rights.
Image: FILE
A man will have to answer to allegations of fraudulent withdrawal of Sh970,000 in a case lodged by his ex-fiancee after his petition to challenge the charges was dismissed.
Daniel Kimani Kariuki (petitioner) had moved to court seeking orders to have the DPP blocked from amending a previous charge sheet and prosecuting the new charges.
Kariuki was formally charged with the offence of assault causing actual bodily harm to Sylvia Wambui but got wind that the DPP intended to amend the charge sheet and include three more counts.
This was on the account of stealing by the petitioner and for making fraudulent withdrawals on two separate accounts.
One of the accounts belonged to a company where both he and Wambui were directors and the other was Wambui's personal account.
The DPP said a complaint alleged a withdrawal of Sh900,000 from the company account and Sh70,000 from Wambui's, and after the conclusion of the investigations, there was probable cause to charge the man.
Kariuki argues that he was not accorded a fair hearing in the proposed alleged accusations.
He sought declarations that the investigation and intention to prosecute him was discriminating and infringed his rights.
He also sought orders to quash the intended charge sheet, prohibit the Kiambu Chief Magistrate's court from proceeding with the case, and the DPP from prosecuting the case in either its original or amended version.
In the petition filed before Judge Peter Mulwa of the Kiambu High Court, the issue in dispute emanated from management disputes in the company.
Kariuki told the court that he and Wambui were both signatories to the company's bank accounts and had lived together.
He added that on September 4, 2018, she did changes to the shareholding of the company without his consent, prompting him to file a complaint at Muthaiga police station.
On September 18, he was arrested under the guise of assaulting Wambui.
Two days later, he filed another complaint at Kiambu police station against his co-director for theft of computers from the house at Fourways, cash, and theft and destruction of the company's property and documents.
He alleged that his complaints were not acted upon, leading him to file a case at a Nairobi Court where an injunction was issued against Wambui for initiating fraudulent changes in the company.
Kariuki told the court that this did not deter the police from arresting and charging him with assault causing bodily harm and DPP intending to amend the charge sheet and include other charges of theft.
He further said his evidence was disregarded and that his right to information and documents has been infringed.
The court also heard that the DPP and Wambui failed to adhere to the injunction of the Nairobi court that barred the fiancee from dealing with the company.
Further, the interested party was illegally in possession of the petitioner's documents and laptop, stolen from the house.
On her part, Wambui, who was listed as an interested party in the petition, opposed the application saying it was in bad faith and a tactic aimed at avoiding the charges at the Chief Magistrate's court.
She said the DPP is mandated to prosecute criminal charges without the consent of either the accused or accuser, after investigations and establishing reasonable suspicion.
She further noted that the criminal proceedings did not violate Kariuki's rights as he would be given a chance to defend his case.
Wambui told the court that granting the conservatory orders will frustrate, instead of advancing the rule of law and be prejudicial to her case.
The DPP also opposed the application arguing that the court lacked jurisdiction to issue the conservatory orders.
It also argued that the orders sought by the petitioner sought to oust, bar, and control the independent prosecutorial powers of the DPP.
Further, the Director of Public Prosecutions said it was common practice that the prosecution might prefer a lesser or a minor charge pending the conclusion of the investigations.
The respondent (DPP) also noted that it was mandated to prove the amended charges against the petitioner to the required standard and amending of charges cannot be construed to mean abuse of the process or actuated malice.
"There is no prejudice to be caused to the petitioner who will be called to plead to the charges," the DPP told the court.
It further submitted that the court was not to interfere with its constitutional mandate unless it was proved the DPP failed to comply with the provisions of Article 157(11) of the constitution.
There was also an argument that the petitioner failed to disclose any violation of his rights.
Pleading the court to dismiss the petition, the DPP also submitted that the orders were not merited as the matter could be canvassed by the trial court.
The court heard the submissions and deliberated on three points, finding that it had jurisdiction over the petition in accordance with the law, contrary to the DPP's arguments.
Judge Mulwa also ruled that the court could only interfere with the constitutional mandate of the DPP when it has been established that the decision to prosecute was arrived at illegally, irrationally, and impropriety.
The judge found that Kariuki failed to demonstrate that the prosecution and the intended amendment of the charges amount to a violation of his constitutional rights.
"The petitioner will be given a chance to defend himself in the trial court and in the event that he is acquitted by the trial court he may file a suit for malicious prosecution, or if found guilty he may appeal against the decision of the trial court," he added.
He dismissed the petition and ordered that each party is to bear its own costs.
"The petition and the amended Notice of Motion lack merit and are dismissed. The declaratory orders sought are declined," Judge Mulwa ruled on August 3, 2023.