The Director of Savannah Heights Limited, John Gachanga, has moved to court seeking joinder in the ongoing criminal proceedings as an interested party.
The application, filed under a certificate of urgency through counsel Danstan Omari, is anchored on the claim that the outcome of the proceedings directly affects related litigation and ongoing corporate interests linked to the contested transaction.
According to court documents, the applicants are seeking to be enjoined in a criminal case in which Ndeta and his co-accused are facing allegations of conspiracy to obtain credit by false pretences, contrary to Section 316 of the Penal Code.
The Office of the Director of Public Prosecutions (DPP), represented by Office of the Director of Public Prosecutions, contends that between February 2017 and January 2018, the accused persons fraudulently obtained a USD 35 million loan equivalent to approximately KSh 4.5 billion from Absa Bank Kenya PLC, while purporting to act on behalf of Savannah Cement Limited.
The applicants argue that they possess a direct and substantial interest in the matter, noting that the criminal proceedings are intertwined with ongoing disputes involving corporate governance and ownership issues within the Savannah Heights and Savannah Cement entities.
They further rely on a prior High Court determination by Justice Bahati Mwamuye, in which similar attempts to halt the prosecution were dismissed.
The court reportedly affirmed that the DPP acted within its constitutional mandate under Article 157, having been guided by sufficient evidence and public interest considerations, and that there was no evidence of abuse of prosecutorial discretion.
In supporting affidavits, Gachanga maintains that the current application by Ndeta seeking to stay proceedings amounts to a re-litigation of issues already settled by a court of competent jurisdiction, and therefore constitutes an abuse of the court process.
Through submissions made by counsel Omari, the applicants further contend that the matter originated as a commercial dispute involving shareholders of Savannah Cement, but later escalated into criminal proceedings following allegations of forged documents used to secure multi-jurisdictional loans, including from institutions in South Africa.
Omari further alleged procedural irregularities in the investigation and prosecution process, stating that the matter was initially reported to the Directorate of Criminal Investigations in 2010 but faced prolonged delays before being forwarded to the DPP for action.
He also raised concerns over alleged failure to consistently issue warrants and non-compliance with court orders requiring disclosure of key investigative documents.
Additionally, he accused certain financial institutions, including the Central Bank of Kenya, and other banking entities of failing to facilitate access to critical documentation necessary for the fair determination of the case, terming such conduct as obstructive to justice.
Counsel further warned that contempt proceedings may be initiated against investigative and regulatory agencies should there be continued non-compliance with court directives.
The court is expected to consider the application for joinder alongside arguments on whether the continued prosecution constitutes an abuse of process or a lawful exercise of prosecutorial discretion.
The matter is scheduled for mention later this week, where further directions are expected to be issued as the high-stakes financial and criminal dispute continues to unfold.
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