The Court of Appeal has declined MultiChoice Kenya’s bid to escalate a construction dispute to the Supreme Court, where it sought to quash criminal charges against two experts it relied on in a Sh895 million dispute with a local construction firm.
A three-judge panel ruled that MultiChoice had not identified any specific, novel or unsettled legal issues that warranted the attention of the Supreme Court.
‘In our view, the applicant does not point to any uncertainty, inconsistency or lacuna in the principles applied by this court. Rather, what is sought is, in substance, a reconsideration of the evidentiary threshold for establishing abuse of process in the context of the particular facts of this case,’ the court ruled on April 30.
MultiChoice contracted Cementers Ltd in 2015 to build an ultramodern office block in Kilimani, but the two parties fell out and MultiChoice terminated the contract in June 2017.
The pay-TV firm later claimed that the contractor’s work was substandard, resulting in cracks appearing in parts of the building.
It then hired experts who prepared a report showing that the building was structurally unsafe. Mr Stanley Kebathi, the principal architect, and Mr Kariuki Muchemi of Interconsult Engineers Ltd (IEL) prepared reports on the structural integrity of the construction.
Cementers then filed a complaint, alleging that the experts had altered or falsified the report to shift blame for the structural defects.
MultiChoice then sought to demolish the building claiming it was a health hazard, triggering law suits as Cementers claimed the report was doctored to evade payment.
The investigations led the criminal charges of conspiracy to defraud and making a false document.
In March 2022, the experts were charged alongside Mr Wilson Karaba, IEL, Conapex Consulting Engineers, and SK Archplans with conspiring to falsify a structural integrity report as part of a scheme to defraud.
Mr Kebathi challenged the prosecution in the High Court, but the case was dismissed in July 2023. An appeal was also dismissed in January last year, with the court noting the experts had failed to prove an ulterior motive behind the charges.
The experts argued the criminal proceedings were intended to damage their reputations and influence ongoing arbitration and court cases.
Then MultiChoice sought Supreme Court’s intervention, arguing the case raised broader issues on prosecutorial overreach and abuse of process in commercial disputes.
MultiChoice argued that the intended appeal raises important and recurring questions on the limits of prosecutorial discretion and the threshold for establishing abuse of criminal process in cases intertwined with civil disputes.
The firm said the issue transcends the parties and has public significance regarding prosecutorial accountability.