Civil debt or fraud? Inside multi-million-shilling battle pitting lawyer against DPP, DCI and Nepalese envoy

Before Justice Jairus Ngaah, a case was filed by lawyer Leonard Shimaka against the Director of Public Prosecutions (DPP) and the Director of Criminal Investigations (DCI).

Shimaka also sued Dr Jimmy Askar, honorary consul general of Nepal, seeking to block an intended prosecution over a Sh12.5 million dispute.

The dispute pitting Shimaka and Askar, according to court documents, revolved around what the lawyer said was processing various title documents for parcels of land and securing a financier who would facilitate the process.

According to Shimaka, his law firm, Marende Necheza & Company Advocates, entered into a Memorandum of Understanding (MoU) with Askar, through which the envoy allegedly facilitated payment of Sh10 million relating to cases in respect of five parcels of land, with different clients.

He explained that the recovery process stalled, and the parties agreed that a refund of Sh2.5 million, with interest, would be paid within two and a half years.

Shimaka also stated a property was registered in the name Shishili Two Thousand Investment Co. Limited was then charged with an intention of selling it to recoup the money.

Further, according to him, Shishili entered another agreement with Askar for the sale of the property to a third party for Sh15 million, and the envoy was to recoup the money owed and wire to Shishili the remainder of the amount.

The lawyer said that the property was never sold, after which the envoy lodged a complaint with the police, alleging that he had obtained by false pretences a total of Sh12.5 million.

The DPP, on the other hand, in his recommendation, indicated that Shimaka was to allegedly sell plots to Askar for Sh10 million but did not honour his end of the bargain, after which he agreed to pay with interest.

 In the letter addressed to the Regional Coordinator, Mombasa Region, the DPP indicated that the interest could be pursued through a civil case while the lawyer ought to be charged.

The decision to charge prompted the lawyer to sue on March 15, 2025, saying that the dispute between him and the envoy was civil and contractual in nature; hence, the path to resolve it was through arbitration.

He insisted that the DPP, the DCI and Askar were wrong to resort to a criminal process. According to him, the amount in question involved a principal facilitation amount and interest on a loan, which would not be said to be obtaining money through fraud.

He also stated that the money advanced in 2021 was disbursed to five persons for processing their titles and related litigation. According to him, the beneficiaries were not investigated, nor were their statements recorded.

At the same time, he said that Askar did not honour his end of the bargain by ensuring that the security was under his name or his nominee's name, or selling it. According to him, a criminal case amounted to double jeopardy.

The DPP and the DCI opposed the case. They argued that they independently reviewed the evidence and concluded that the money was obtained on the strength of representation shown to be false, and that Shimaka had a plot which would fund a refund.

They insisted that the lawyer could tell the same story to the trial court as his defence. The court heard that public interest in investigations and prosecution of genuine allegations of crime would be undermined if the court blocked the prosecution.

Justice Ngaah noted that by the DPP separating the interest and principal amount, he had drawn the line between what could be pursued in a Civil Court and what the lawyer could be called to answer in a Criminal Court.

“Whether that representation was in fact made, whether it was false to the Applicant's knowledge, and whether it induced the Interested Party to part with his money, are quintessentially questions of fact for the trial court to resolve upon the evidence, after hearing both sides and any defence the applicant may wish to raise, including the existence of the 2021 and 2024 MOUs, the conduct of the Interested Party, and the argument that the transaction was throughout understood by both parties to be commercial rather than criminal in character.”

“It is not for this court, sitting in judicial review, to pre-empt that determination by treating the existence of a contractual relationship as, of itself, dispositive of the criminal character of the underlying conduct,” he said.

He was also of the view that double jeopardy could not apply as Shimaka had not been tried before, acquitted or convicted before over the same facts.