A Nairobi court has declined to terminate criminal proceedings against a company director accused of stealing more than Sh356 million from a firm he helped run, holding that the reasons advanced by the prosecution were insufficient to justify ending the case.

In a ruling delivered on Tuesday, Milimani Chief Magistrate Rose Ndombi declined an application by the Office of the Director of Public Prosecutions (ODPP) seeking to withdraw the case against Honey Khatwani, a director of Oki General Trading Limited.

Khatwani is facing charges of allegedly stealing Sh356.7 million belonging to the company between January 2020 and June 2024 while serving as one of its directors. He has denied the allegations.

The prosecution had asked the court to allow withdrawal of the case under Section 87(a) of the Criminal Procedure Code, arguing that there was a related civil dispute between the parties and that efforts had been made to resolve the matter through a consent agreement.

However, Magistrate Ndombi held that the existence of a civil case was not enough to justify halting criminal proceedings.

“The existence of a civil suit does not by itself justify termination of the proceedings,” the magistrate ruled.

She cited Section 193A of the Criminal Procedure Code, which permits criminal and civil proceedings arising from the same dispute to run simultaneously.

The court further emphasized that although the Director of Public Prosecutions has constitutional authority to discontinue cases, such decisions are subject to judicial scrutiny.

“The requirement for judicial consent is not a mere formality,” Ndombi said, noting that courts must ensure prosecutorial powers are exercised in line with the law, public interest and the interests of justice.

A major issue in the application was the prosecution’s indication that withdrawal of the case was tied to the refund of the disputed funds. The complainant opposed the move, arguing that no money had been repaid and that the terms of the consent agreement had not been honoured.

Ndombi found that the alleged settlement had not been fully implemented and warned that allowing the withdrawal under those circumstances would be premature.

“If the court were to allow the withdrawal under such a constraint, it would effectively sanction the benefit of a settlement process before the performance of the very condition upon which the withdrawal was claimed,” she said.

The magistrate concluded that the prosecution had failed to demonstrate adequate grounds for discontinuing the matter.

“The court is therefore not persuaded that sufficient grounds have been established to allow the case,” she ruled.

The decision means the criminal trial against Khatwani will proceed before the Milimani court.