There was drama at a Nairobi court after a company secretary and two children of Kenya's former Attorney General James Karugu, who are facing criminal charges over an alleged scheme to fraudulently transfer shares belonging to a US-trained lawyer, failed to appear in court for the second consecutive time.
The absence came just days after the three asked the court to review and substantially reduce the KSh700,000 cash bail imposed on each of them, arguing that the amount was excessive and disproportionate to the value of the disputed share.
Company Secretary Jane Wangechi Kabiu alias Jane Kabiu Gitau and brothers Eric Mwaura Karugu and Benjamin Githara Karugu were conspicuously absent when their application came up before a Nairobi Senior Principal Magistrate.
Their lawyer, Kiraithe Wandugu, was at a loss l to explain why his clients had once again failed to attend court, raising questions over whether they would comply with court orders if their bail terms were reduced.
The latest no-show is particularly significant because the three are asking the same court to exercise discretion in their favour and replace the KSh700,000 cash bail with what they describe as more reasonable conditions.
The applicants have argued that the amount is punitive when measured against the disputed share, which they say has a nominal value of only KSh100.
However, the prosecution case goes beyond the face value of the share.
The three are facing criminal charges at the Milimani Law Courts over the alleged fraudulent transfer of one ordinary share belonging to Victoria Nyambura Karugu, the sister of Eric and Benjamin.
The State alleges that the three conspired to defraud Victoria by transferring her ordinary share to Centurion Holdings Limited.
Kabiu, a company secretary and proprietor of Optimum Registrars, faces additional charges of conspiracy to defraud, forgery and giving false information in connection with the alleged transaction.
The prosecution alleges that she knowingly and fraudulently uttered a false Share Transfer Form purporting to be the genuine document of Victoria and presented it to the Director General of Business Registration Services.
The two Karugu brothers are also accused of giving false information to police, allegedly causing investigations to be undertaken in circumstances they knew did not warrant such investigations.
The accused have denied the charges.
Their application for review of bail terms repeatedly focuses on the KSh100 nominal value of the disputed share.
In an affidavit sworn by Eric Mwaura Karugu on behalf of the applicants, he argues that the value of the share does not justify the KSh700,000 cash bail imposed on each accused.
“From the share transfer document the value of the said share is Ksh100,” Mwaura states.
He further argues that Victoria did not lose ownership of the disputed share, claiming that “the alleged share was just moved from one company to another and is still in her name.”
The applicants say they struggled to raise the KSh700,000 each after being detained following their arrest, relying on friends and relatives to secure their release.
They now claim that those who assisted them have demanded repayment, leaving them under financial pressure.
“With the strenuous efforts all the accused were able to raise the cash and made the deposits,” Mwaura says.
He adds that their benefactors have since demanded their money back.
The applicants contend that the bail terms are inconsistent with Article 49 of the Constitution, which provides for release on bail or bond on reasonable conditions unless there are compelling reasons to deny it.
But their second consecutive failure to attend court threatens to overshadow that argument.
The court is now faced with an unusual situation,accused persons seeking more lenient bail terms while simultaneously having to account for repeated absences from proceedings.
For Kabiu, the case also places her professional role under intense scrutiny.
As a company secretary, her alleged involvement touches on corporate records and documentation used to establish ownership and facilitate changes in company shareholding.
The prosecution's allegations therefore concern not merely the KSh100 nominal value appearing on the disputed share document, but the alleged use of a forged instrument to effect a corporate transaction.
The applicants, however, maintain that the bail terms should be reviewed and either substantially reduced or replaced with alternative conditions.
The prosecution has been granted seven days to respond to the application.
The matter is scheduled to come up on October 28,this year.
The three were initially released on KSh700,000 cash bail each after denying the charges before Chief Magistrate Dolphina Alego.
The court's next decision will therefore come against the backdrop of their repeated absence and their request for the very bail conditions they have allegedly struggled to comply with.
