Nairobi — US-based businessman Charles Hill Jr has moved to the High Court seeking to stop ongoing criminal proceedings against him, arguing that the charges are unlawful, discriminatory, and violate his constitutional rights.
Hill, a shareholder in Savannah Heights Limited, has filed a petition naming the Directorate of Criminal Investigations, the Office of the Director of Public Prosecutions, the Chief Magistrate's Court at Nairobi, and the Attorney General of Kenya as respondents.
In his affidavit, Hill states that he resides in the United States and only recently became aware of the criminal case filed against him at the Milimani Law Courts in which he is charged alongside Benson Sande Ndeta.
The charges relate to obtaining credit by false pretences, contrary to Section 316 of the Penal Code. Prosecutors allege that between February 2017 and January 2018, Hill and his co-accused jointly secured a USD 35 million (approximately Sh4.5 billion) loan from Absa Bank Kenya PLC (formerly Barclays Bank Kenya) while purporting to act on behalf of Savannah Cement Limited.
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Hill contends that the issues surrounding the loan were previously addressed by the High Court, which examined the legality of the transaction, including whether proper corporate resolutions were passed and whether any fraud or forgery occurred.
According to Hill, the High Court found that the loan approval meeting was properly constituted, key individuals, including Donald Mwaura and John Gachanga Kaiganaine, were present, the borrowing was not orchestrated solely by him and the resolutions authorizing the loan were valid and lawful.
He maintains that the court found no evidence of fraud, embezzlement, or misuse of funds, effectively settling the dispute.
Hill has raised concerns over what he terms as selective prosecution, noting that individuals identified by the High Court as participants in the loan approval process -- including Donald Kiboro Mwaura and John Gachanga Kaiganaine -- are now listed as complainants in the criminal case rather than co-accused persons.
He argues that this decision violates Article 27(1) of the Constitution, which guarantees equality before the law and freedom from discrimination.
"This raises serious questions about the fairness and objectivity of the prosecution," Hill states, citing an affidavit by an investigating officer.
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The businessman further argues that proceeding with the criminal case undermines the earlier High Court findings and amounts to a parallel process that effectively challenges a binding judicial decision.
He claims this violates his right to fair administrative action under Article 47 of the Constitution, adding that the prosecution is driven by ulterior motives.
Hill is now seeking conservatory orders to stay the criminal proceedings at the Magistrate's Court, warning that failure to intervene would expose him to injustice.
He maintains that the case represents an abuse of the legal process and urges the High Court to protect him from what he describes as a prosecution "driven by ill motive."
