Tycoon Devani not off the hook yet

Business tycoon Yagnesh Devani has suffered a major setback after the High Court dismissed his bid to terminate four criminal cases linked to the Sh7.6 billion Triton Petroleum scandal.

In a judgment delivered by Justice Roselyne Aburili of Milimani High Court found that Devani, the founder and former chairman of Triton Petroleum Company Limited, had failed to demonstrate that the Director of Public Prosecutions (DPP) abused his constitutional mandate or violated his rights by preferring criminal prosecutions against him.

The judge dismissed the petition and directed that all four criminal cases continue before the trial courts despite his attempt to persuade the court that the charges stem from commercial disputes rather than criminal conduct.

"The petition dated July 13, 2023, is devoid of merit and the reliefs sought are not available to the petitioner (Devani). The petition is hereby dismissed. The proceedings initiated by the DPP... shall continue until conclusion," Justice Aburili ruled.

The ruling keeps alive criminal proceedings that have dogged Devani for more than 16 years over the collapse of Triton Petroleum, one of Kenya's biggest corporate scandals.

The scandal involved the alleged irregular release of more than 126 million litres of petroleum products valued at about Sh7.6 billion from Kenya Pipeline Company's storage facilities under a collateral financing arrangement involving Emirates National Oil Corporation (ENOC).

Devani who was extradited to Kenya early 2023 had urged the High Court to quash prosecutions in Anti-Corruption Case No. 18 of 2009, Criminal Cases No. 1150 of 2009, 1151 of 2009 and 87 of 2011, arguing that they arose from commercial agreements involving Triton, Kenya Commercial Bank (KCB), Kenya Pipeline Company (KPC), ENOC and Fortis Bank, making them civil rather than criminal disputes.

He also argued that a Deed of Settlement with KCB, under which assets were surrendered to settle outstanding debts, extinguished any basis for criminal proceedings and created a legitimate expectation that the prosecutions would be withdrawn.

But Justice Aburili rejected those arguments, holding that the issues raised by Devani are matters of evidence to be tested before the trial court and not through constitutional litigation.

"These are issues that can be canvassed before the trial court and therefore, this court should not interfere with the criminal proceedings," the judge said.

The court further held that Devani had not proved that the prosecutions were instituted in bad faith or for purposes other than enforcing criminal law.

"I am unable to find that the respondent has abused his mandate in instituting the criminal charges against the petitioner or that the respondent has violated any provisions of the Constitution or any written law or that the criminal proceedings were instituted in bad faith," Justice Aburili ruled.

The judge also found that Devani had merely listed constitutional provisions allegedly violated without demonstrating the actual harm suffered.

"The petitioner has set out the constitutional provisions allegedly violated by the respondent but has not substantiated his claims nor stated and demonstrated the harm that he has suffered or is likely to suffer," the court held.

Devani, who spent years fighting extradition proceedings in the United Kingdom after leaving Kenya in 2009, was eventually extradited and returned to face the long-pending charges.

The prosecution alleges that petroleum products held under a collateral financing agreement were unlawfully disposed of without the financiers' consent.

The four criminal cases accuse Devani and his co-accused of offences including conspiracy to defraud, fraudulent disposition of mortgaged goods, stealing and obtaining by false pretences, all arising from transactions surrounding Triton's collapse in 2008 and 2009.

He has since denied the charges before and some were withdrawn by the DPP Renson Ingonga under section 87(a) of the CPC after he moved to the High Court to challenge the same.

Justice Aburili reaffirmed that courts should only interfere with the DPP's prosecutorial powers where there is clear evidence of abuse of process, illegality or bad faith.

"This Court... may only interfere where it is shown that criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. I have not found any evidence of such abuse," the judge ruled.

The judgment now clears the way for all four criminal prosecutions to resume, ensuring that one of Kenya's longest-running corporate fraud cases will continue before the trial courts.