UNITED MILLERS DIRECTORS IN HOT SOUP OVER FORGERY

The two United Millers directors were supposed to have been arraigned at the Milimani law courts in Nairobi to take a plea, but this did not happen.

A Kisumu-based company wants the Director of Public Prosecutions (DPP) Noordin Haji to intervene and have two directors of United Millers Ltd take plea in a criminal case involving the alleged presentation of false documents to justify demand for compensation for loss of business.

In a complaint filed on their behalf by Senior Counsel Prof Tom Ojienda, B.N Brothers Ltd has faulted the decision by Assistant Director of Public Prosecutions Joseph Irungu to defer plea taking by United Millers' directors Sunil Shah and Kamal Shah for 14 days.

United Millers had in 2015 sued B.N Kotecha Ltd accusing the firm of failing to meet its end of the bargain by delivering agreed quantities of sugar.In a ruling dated December 2015, Justice H.K Chemitei ordered the firm to pay United Millers Ksh 124,106,600 together with costs.

Hemal Kishor Kotecha and Harshilkishore Kotecha, who had been named as the second and third defendants respectively, were, however, not penalised as no cheque was issued to them as individuals.

United Millers Ltd, according to court filings, first made a request to B.N Kotecha & Sonsto for purchase 25,000 bags of sugar weighing 50 kgs at Ksh 3,050 per bag.  On March 5, 2015, it transferred via RTGS the sum of Ksh 76,250,000 to B.N Kotecha & Sons' account.

"On 20th May 2015 the defendant made another offer of 35000 bags at a cost of Kshs.2900/= per bag, this being a second lot.  The applicant paid kshs.105,500,000/= via RTGS. From the affidavit as well as the annexures the defendants did deliver partially the said sugar leaving a balance worth Kshs.126,241.600  which the defendant has admitted the sum of Kshs.124,106,600," Justice Chemitei noted in his ruling. 

B.N Kotecha & Sons have since appealed the decision, arguing that United Millers' claim of loss of business was from the onset tainted by illegalities and irregularities arising from forgery on invoices. The matter is pending under Kisumu Civil Appeal No. 132 of 2019.

The firm also lodged a formal complaint with the Director of Criminal Investigations (DCI) to look into the illegalities as evidenced by a forensic audit conducted by KPMG and conduct investigations into the same.

The DCI, after conducting its investigations, forwarded the file to the DPP recommending criminal charges. It is then that the DPP recommended that two directors of United Millers Ltd be arrested and arraigned in court. The duo were subsequently arrested on June 3.

The two directors were supposed to be arraigned at the Milimani law courts in Nairobi to take a plea, but this did not happen.

Mr. Ojiienda also claims he was reliably informed that the DPP, through Assistant Director of Public Prosecutions Joseph Riungu, advised that plea taking be deferred for 14 days on grounds that new information had been brought to the attention of the DPP.

"This comes in the wake of the fact that the DPP had already recommended arrests and prosecution of the suspects and the relevant agencies had proceeded to arrest the two persons. We are further informed by reliable sources that the "new information" that came into the attention of Mr Riungu was a phone call and letter from Mr Stanley Ogejo- Advocate of the suspects to Mr Riungu," Prof Ojienda adds in his complaint.

The letter, he adds, dwells on an ongoing insolvency petition at the High Court in Kisumu and the pending appeal relating to the B.N Kotecha & Sons case.

"Counsel for the suspects cites these two cases as the basis for the stay/suspension of the plea taking process on the basis that the same is an abuse of the court process in the face of ongoing civil cases. We believe that Mr Riungu is abusing the powers and privileges bestowed upon him by the people of Kenya through the Constitution that they voted for," says Ojienda.

"Mr Riungu, in our opinion, has shown a conflict of interest in this matter. It is our respective legal opinion, which position we stand for, that the existence of a civil case does not have any bearing whatsoever on a criminal case. Our client is a complainant in the criminal complaint and as such, it has to see to it that justice is done," added Prof Ojienda.

He called on Haji to have the suspects arraigned in court to take pleas as this will go a long way in ensuring that justice is not only done but seen to have been done.

Riungu in a letter to DCI headquarters, however, states that the DPP is required under the Constitution to look into the merits and demerits of any additional information to confirm if it has any effect on the earlier decision made.

"This is in line with ensuring the DPP shall act in a fair manner and to ensure that miscarriage of justice does not take place. Therefore, in the circumstances, the DPP is required to review the additional information and make a determination on the veracity of the information availed to his office," Irungu adds in the letter dated June 3 while communicating the decision to defer plea taking by the duo.