The Applicants’ Case;
1. The application that is before this court for determination is the one dated 9th June, 2025 wherein the applicant seeks orders:-
1. that this honorable court be and is hereby pleased to issue a judicial review order of certiorari to call-up, remove, deliver up to this honorable court and quash the impugned decision by the 1st, 2nd & Respondents, reposed in the prosecution of the ex-parte Applicant in Milimani Criminal Case No. E034 of 2025 - Republic v Nicholas Alexander Nesbitt & Others instituted vide a Charge Sheet dated 21st January, 2025.
2. THAT this Honorable Court be and is hereby pleased to issue a Judicial Review order of prohibition to restrain the Respondents or anyone claiming under or pursuant to their authority from in any howsoever proceeding with the prosecution of the ex-parte Applicant in Milimani Criminal Case No. E034 of 2025 Republic v Nicholas Alexander Nesbitt & Others or any other such suit premised on the particular as instituted, vide the charge sheet dated 21st January, 2025.
3. THAT the costs of this application be borne by the Respondents on a full indemnity basis.
2. It is the applicant’s case that the impugned criminal proceedings arise from monies exchanged between the1st Interested Party and Bee n Bee Limited pursuant to a Trade Finance Support Agreement dated 23rd May, 2023, entered into between themselves. He was not a party thereto.
3. It is his case that he has been wrongly charged in the impugned criminal proceedings on account of monies paid by the 1st interested party to Bee n Bee Limited, despite not being a director or shareholder of the said Bee n Bee Limited and despite none of the alleged sums having been paid by the 1st Interested Party to the Applicant.
4. It is his case that there is evidence that the commenced criminal prosecution is not only without merit in law. The prosecution machinery is being used unlawfully to harass him and nefariously contrived to coerce him to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that he had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited, which act of introduction does not in any way whatsoever constitute a criminal offence in law.
5. The Respondents have invoked the aforesaid impugned unlawful criminal proceedings against him, in pursuing a claim that does not lie in law; betraying the patent ulterior motives behind the impugned prosecution, by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed.
6. He argues that the impugned criminal proceedings are anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecution which constitutes an abuse of the legal process. He invites the Court to intervene and bring to an end such wrongful exercise of discretion.
7. According to him,the current prosecutorial regime under the Constitution, and the Office of the Director of Public Prosecutions Act, behooves this Hon. Court to investigate the allegations impugning the subject prosecution; and to consequently make a determination thereon as to compliance with the standards prescribed thereon.
8. To hold that the discretion donated to the 1st Respondent by the law, to prefer charges ought not to be questioned by this Hon. Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself.
9. On or about February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars.
10. Upon introducing Mr. Bulent Boytorun to the 2nd Interested Party, he had NO further role to play in any subsequent Agreement and/or transaction between the aforesaid parties he is neither a director nor shareholder of their aforesaid companies nor an agent of any of the said parties.
11. Subsequently, the 1st Interested Party and Bee n Bee Kenya Limited entered into a Trade Finance Support Agreement dated 23rd May, 2023 (hereinafter referred to as "the Agreement"), executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2nd Interested Party on behalf of the 1st Interested Party; with him not being a party to the same and thus having no obligations whatsoever in respect to the said Agreement.
12. He is further aware that all sums that were subject of the transaction were paid by the 1st Interested Party directly to Bee n Bee Kenya Limited.
13. He is not a director nor shareholder of the said Bee n Bee Kenya Limited.
14. No monies whatsoever were remitted by the 1st Interested Party to him, as indeed he was not in any way an agent of Bee n Bee Kenya Limited nor was he a party to the agreement between the 1st interested Party and Bee n Bee Kenya Limited.
15. He is aware that a dispute subsequently arose between the 1st Interested Party and Bee n Bee Limited in respect of the Agreement, resulting in a declaration of the dispute, for the reason that, the contractual relationship between the 1st Interested Party and Bee n Bee Kenya Limited envisaged an arbitral clause for the settlement of all disputes emanating from the Agreement, at Clause 7 thereof.
16. In that regard, the Applicant is further aware that pursuant to the said arbitral clause, arbitration proceedings between the parties to the Agreement, have since been commenced via a Statement of Claim dated 1st December, 2023.
17. Further, the said arbitral proceedings were subsequently concluded and a final award issued by the Hon. Arbitrator thereto, which arbitral award conclusively resolved the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party.
18. It is his case that he was not a party to the said arbitral proceedings as indeed he was not a party to the Agreement between the parties as such, he had no obligations whatsoever in respect of the Agreement between the parties, which material fact clearly establishes that the impugned criminal proceedings against himself have been commenced for an extraneous purpose.
19. He strongly believes that thus it is clear that he is not guilty of any wrong doing whatsoever, having not been a party nor in any way prior to the Agreement between the 1st Interested Party and Bee n Bee Kenya Limited, which has culminated in the charges herein being unlawfully preferred against him.
20. He argues that the unexplained and summary disregard of the ongoing arbitration proceedings before the Hon. Arbitrator, which would conclusively resolve the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party, betrays the absence of legal cause to investigate and prosecute him — which illegality this Hon. Court cannot countenance to proceed.
21. He argues that the exercise of the decision to prosecute him, where clearly it is a civil dispute between the 1st Interested Party and Bee n Bee Limited and the subject of arbitration proceedings evinces patent irreversible violations of my fundamental freedoms, warranting the immediate grant of the orders sought.
22. The impugned charges do not lie in law and have only been instituted in sheer malice at the behest of the 2nd Interested Party, it is critical to note that the complaint in the impugned charge sheet is the 2nd Interested Party, rather than the 1st Interested Party which ought to be the proper complainant in law, taking into account the material facts of the alleged crime.
23. A critical perusal of the particulars of the count purport that, the alleged offence is in respect of monies purportedly stolen from 2nd Interested Party, despite the subject sums having been remitted by 1st Interested Party, a separate legal entity.
24. The basic principle of company law is that the company has a distinct and separate personality from its shareholders and directors and thus invites the Hon. Court to find concurrence with this tenet that dictates that the property of the company is distinct from that of its shareholders and the shareholders have no proprietary rights to the company's property apart from the shares they own.
25. Accordingly, arising from the circumstances above, the basic consequence of incorporation dictates that only the 1st Interested Party has capacity to take action to enforce its legal rights.
26. The 1st and 2nd Respondents though independent offices under Article 157(10), Constitution; remain subject to the supervision of the High Court under Article 157(11), Constitution as read Articles 165(2); & (6) thereof. This supervision and oversight would not in any way howsoever; unduly fetter, restrict or limit the investigative or prosecutorial authority: but conversely serves to balance and check on the possible excesses in the exercise of this power.
27. Further, though the power exercised by the 1st and 2nd Respondent is discretionary, the Court is enjoined to impeach its (ab)use, where it is exercised in bad faith or receive a viciously or interest antithetical to public interest.
28. Public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, state interest may outweigh societal interests: as such it cannot plausibly be in public interest to countenance the use of criminal proceedings as a pawn to coerce a party to submit to an existing civil claim as is sought in the proceedings.
29. He harbors a legitimate apprehension that the charges preferred against me in Milimani Criminal Case E034 of 2025 are actuated by the desire to punish me on account of my refusal to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that I had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited; by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed.
30. It is his case that the charges preferred against him in Milimani Criminal Case E034 of 2025 do not lie under the Companies Act, for want of sanction, as such it cannot be just, lawful, fair and/or equitable to subject me to the rigors and vagaries of a criminal trial against such grave violations.
31. According to him it is unjustified to prejudice, humiliate and embarrass him, putting him to unnecessary expense and agony, erstwhile threatening my liberty and disparaging my business on account of the impugned unlawful criminal prosecution against me.
32. The oppressive and vexatious investigation and now prosecution is contrary to public policy and that the Respondents in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the Respondent) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The Hon. Court has inherent power to interfere with such investigation or prosecution process.
33. In deciding whether to commence or pursue criminal prosecution the 1st Respondent must inter alia consider the interests of the public and must satisfy inter alia that the prosecution is necessary, will enhance public confidence in the law and that the case can be resolved easily by civil process without embarrassing and putting an individual's liberty at risk.
34. According to him it is clear that the impugned criminal proceedings against him in, Milimani Criminal Case No. E034 of 2025 is most unlawful and only designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion.
35. In his further affidavit the Applicant argues that whereas he was previously a director at Bee n Bee Kenya Limited, he resigned from my role as a director therein on 11thMarch 2022 as set out in the letter from the Business Registration Service dated 22nd September, 2023.
36. It is further his case that he resigned as a signatory to the bank account held by the said Bee n Bee Kenya Limited, and further confirm that have had no participation whatsoever in the management and/or running of Bee n Bee Kenya Limited, since 11th March, 2022.
37. According to him, the impugned prosecution is premised on a Trade Finance Agreement entered into between the 1st Interested Party and Bee n Bee Kenya Limited in the year 2023.
38. As rightly admitted at of the 1st and 2nd Respondents' Replying Affidavit, in which year he was not a director nor shareholder nor in any way involved in the management and/or running of Bee n Bee Kenya Limited.
39. The aforesaid Trade Finance Support Agreement dated 23rd May, 2023 (hereinafter referred to as "the Agreement"), was executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2nd Interested Party on behalf of the 1st Interested Party.
40. With him not being a party to the same and thus having no obligations whatsoever in respect to the said Agreement.
41. The alleged USD that was subject of the aforesaid transaction was paid by the 1st Interested Party directly to Bee n Bee Kenya Limited.
42. He argues that no monies whatsoever were remitted by the 1st Interested Party to him.
43. The 1st and 2nd Respondents have not produced any evidence whatsoever to establish that he received and/or in any whatsoever benefited from the sums paid by the 1st Interested Party to Bee n Bee Kenya Limited, that would warrant his prosecution in the impugned criminal proceedings.
44. A perusal of Bee n Bee Kenya Limited's bank statement produced as annexure "EG-I" in the 1st and 2nd Respondent's Replying Affidavit, confirms that, upon Bee n Bee Kenya Limited receiving USD from the 1st Interested Party, no sums whatsoever were transferred by Bee n Bee Kenya Limited to him, as such he did NOT in any way whatsoever receive and/or benefit from the said sums.
45. It is his case that the material background to the impugned criminal proceedings, is that on or about February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars.
46. Materially, he reiterates that upon introducing Mr. Bulent Boytorun to the 2nd Interested Party, he had no further role to play in any subsequent Agreement and/or transaction between the aforesaid parties.
47. It is further his case that whereas I was aware that there were ongoing arbitration proceedings between the 1st Interested Party and Bee n Bee Kenya Limited on account of a dispute that arose in respect of the trade Finance Support Agreement dated 23rd May, 2023 entered into between themselves, he has only recently been made aware that the said arbitration proceedings have been concluded and an Arbitral Award issued thereto.
48. It is his case that he is shocked that the Arbitral award made an adverse finding and/or determination to the effect that he was purportedly an agent of Bee n Bee Kenya Limited in respect of the transaction between the 1st Interested Party and Bee n Bee Kenya Limited, which adverse finding is completely and utterly factually incorrect.
49. It is his case that he wrote to the Hon. Arbitrator, Njeri Kariuki, highlighting that I take great exception to the aforesaid impugned determination against myself, as he has never at any point whatsoever been an agent of the said Bee n Bee Kenya Limited, and further materially that the said impugned determination was made without according him a chance to be heard on the same, contrary to his fundamental right to fair hearing, as enshrined under Article 50 of the Constitution, which right cannot be limited.
50. He demanded that the Hon. Arbitrator immediately recalls the said Arbitral Award and amends the same, removing any adverse inference and he awaits to receive a response from the Hon. Arbitrator in respect of my aforesaid demand and expect a favourable response thereto in as far as deletion of any adverse inference and/or determination in the impugned arbitral award in respect me being an agent of Bee n Bee Kenya Limited, which inference is not only completely and utterly factually incorrect.
51. The aforesaid fact that he was not and have never been an agent of Bee n Bee Limited pertaining the transaction between the Interested Party and Bee n Bee Limited has further been clearly and unequivocally affirmed by Bee n Bee Limited.
52. Indeed, vide a letter dated 29th May, 2025 by the Advocates for Bee n Bee Kenya Limited seeking a review of the decision by the 1st Respondent to charge Bee n Bee Kenya Limited in the impugned criminal proceedings, at paragraph E thereof, it is clearly and unequivocally established that he had no contractual, financial, or operational involvement in the transaction at issue, nor did he hold m any position, interest, or stake in Bee n Bee Kenya Ltd at the time of the transaction.
53. In light of the foregoing, he reiterates that it is certainly clear that he is not guilty of any wrong doing whatsoever, having not been a party nor in any way privy to the Agreement between the 1st Interested Party and Bee n Bee Kenya Limited, which has culminated in the charges herein being unlawfully preferred against him.
54. It is his case that from the foregoing it is thus clear that being charged in the impugned criminal proceedings whereas there is evidence that prima facie the commenced criminal prosecution is not only without merit in law, but is being used unlawfully to harass me and nefariously contrived to coerce him to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that he had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited, which act of introduction does not in any way whatsoever constitute a criminal offence in law.
55. The interested parties have purported that my impugned prosecution is on account of the existence of a separate company, being BNX Partners Limited, which company was not in any way involved in the transaction between the 1st Interested Party and Bee n Bee Limited.
56. Indeed, a perusal of the 1st and 2nd Respondents' entire Replying Affidavit as well as all the documents intended to be relied upon by the 1st Respondent in the impugned criminal proceedings confirms that the said BNX Partners Limited was no in any way involved in the transaction between the 1st Interested Party and Bee n Bee Limited, as indeed the said company has no in any way been adversely mentioned and/or implicated in the impugned criminal proceedings.
57. It is his case that, notwithstanding any similarity of the directorship in any two companies, the inference that two separate companies are the same entity is a misapprehension of the legal personality of companies.
58. Indeed, the principle of Legal Personality of Companies has been upheld by various Courts of law since time immemorial and as such it is trite law that companies are legal entities that are distinct from their directors and/or shareholders as espoused in the locus classicus case of Salomon vs Salomon 18 AC 8.
59. It is his case that it is thus most important to underscore that the said company, BNX Partners Limited, is a separate legal entity from Bee n Bee Kenya Limited notwithstanding any similarity in directorship, as such BNX Partners Limited and/or its directors cannot in any way whatsoever be held liable for any adverse actions and/or omissions undertaken by Bee n Bee Limited.
60. The interested parties further alleged that he is involved in the management of the said BNX Partners Limited on account of a purported website, without producing any official search to prove the said allegation.
61. the said purported excerpt of BNX Partners Limited's website as produced in the 1st and 2nd Interested Parties replying affidavit being electronic evidence, is inadmissible for failure to comply with the mandatorily provisions of Section 106B of the Evidence Act in regard to production of a Certificate of Electronic Evidence.
62. It is his case that despite the foregoing material facts, the 1st Respondent, at the 2nd Interested party's behest, has now invoked the aforesaid impugned unlawful criminal proceedings against him, in pursuing a claim that does not lie in law; betraying the patent ulterior motives behind the impugned prosecution, by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed.
63. In this regard, he argues that this Honorable Court, as the bastion of justice and rule of law, must extend apt constitutionally enshrined protection to prevent a patent abuse of criminal/ prosecutorial process resulting in oppression.
64. The aforesaid impugned criminal proceedings are anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion.
65. He argues that the current prosecutorial regime under the Constitution and the Office of the Director of Public Prosecutions Act, behooves this Hon. Court to investigate the allegations impugning the prosecution; and to consequently make a determination thereon as to compliance with the standards prescribed thereon.
66. According to him, inherently, it is in the interest of the public that this Honorable Court exercises its jurisdiction and upholds its adjudicatory authority to facilitate the order and functioning of public agencies and safeguard my rights.
67. The prosecution has affected his reputation being muddied/tainted, my liberty arbitrarily being deprived, but my business is also threatened with collapse, he the 1st and 2nd Respondents though independent offices under Article 157(10), Constitution; remain subject to the supervision of the High Court under Article 157(11), Constitution as read Articles 165(2); & (6) thereof.
68. This supervision and oversight would not in any way howsoever; unduly fetter, restrict or limit the investigative or prosecutorial authority: but conversely serves to balance and check on the possible excesses in the exercise of this power.
69. Further, though the power exercised by the 1st and 2nd Respondent is discretionary, the Court is enjoined to impeach its abuse, where it is exercised in bad faith or irrespective or for interest antithetical to public interest.
70. The Respondents' decision must evince public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
71. Public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, state interest may outweigh societal interests: as such it cannot plausibly be in public interest to countenance the use of criminal proceedings as a pawn to coerce a party to submit to an existing civil claim as is sought in the proceedings.
72. He argues that there are Constitutional principles which every public officer including the 1st Respondent should take into account in exercising his power and in performing his functions including the supremacy of the Constitution, the national values which includes rule of law, human dignity, transparency and accountability; and fundamental rights and freedoms, an integral part of which includes fair administrative action and right to a fair trial.
73. It is further his case that in deciding whether to commence or pursue criminal prosecution the 1st Respondent must inter alia consider the interests of the public and must satisfy inter alia that the prosecution is necessary, will enhance public confidence in the law and that the case can be resolved easily by civil process without embarrassing and putting an individual's liberty at risk.
74. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.
75. He strongly maintains that the impugned criminal proceedings against myself in Milimani Criminal Case No. E034 of 2025 is most unlawful and only designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion.
76. According to him, the 1st Respondent's decision to charge him is in clear violation of Article & (b), 27(1), 40(1), 47, 157, 232 & 244 of the Constitution as read with Section 4 and 7(2), Fair Administrative Actions Act that enjoins the 1st Respondent to observe and apply the rule of law, as well as equity.
77. It is only fair, prudent and within the overriding objective of this Court that the impugned orders and/or proceedings in Milimani Criminal Case No. E034 of 2025 be quashed.
THE EX-PARTE APPLICANT'S SUBMISSIONS
78. In buttressing his case, The applicant submits that on or about February, 2023, he was acting in good faith when he introduced Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2 nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars.
79. The Ex-parte Applicant submits that by so doing, he had no further role to play in any subsequent Agreement and/or transaction between the aforesaid parties.
80. He further submits that he is not an agent, a director or a shareholder of the aforesaid companies.
81. After the above introduction, the 1st Interested Party and Bee n Bee Kenya Limited entered into a Trade Finance Support Agreement dated 23rd May, 2023 through the agreement that was executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2 nd Interested Party on behalf of the 1st Interested Party.
82. In advancing the above, all sums that were subject of the transaction were paid by the 1st Interested Party directly to Bee n Bee Kenya Limited.
83. He further submits that a dispute subsequently arose between the 1st Interested Party and Bee n Bee Limited in respect of the Agreement, which was referred to arbitration. The ex-parte Applicant was not a party to the said arbitral proceedings.
84. The arbitration culminated in an award that conclusively resolved the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party.
85. He submits that the unexplained and summary disregard of the ongoing arbitration proceedings before the Abritrator, which would conclusively resolve the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party, betrays the absence of legal cause to investigate and prosecute the ex-parte Applicant —which illegality this Hon. Court cannot countenance to proceed.
86. Indeed, the exercise of the decision to prosecute the ex-parte Applicant, pegged on an issue which is a civil dispute between the 1st Interested Party and Bee n Bee Limited and the subject of arbitration proceedings evinces patent irreversible violations of the ex-parte Applicants' fundamental freedoms, warranting the immediate grant of the orders sought herein.
87. This precipitated the institution of the instant proceedings. He submits that judicial review is a central control mechanism of administrative law by which the judiciary protects against abuse of power by public authorities such as the 1 st Respondent.
88. The said role constitutes a safeguard essential to the rule of law by guiding public authorities and ensuring that they act lawfully, are accountable to law and not above it; and thereby protecting the rights and interests of those affected by the exercise of public authority or power.
89. Reliance is placed in the case of Republic v Office of the Director of Public Prosecution & 5 others Ex-Parte Sylvia Wairimu Njuguna [20181 eKLR, wherein the Learned in addressing a similar issue held as follows:
"However, according to Judicial Review Handbook, 6 th Edition by Michael Fordham at page 5, judicial review is a central control mechanism of administrative law by which the _judiciary discharges the constitutional protecting against abuses of power by public authorities, It constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing parameters and duties imposed by Parliament; guiding public authorities and lawfully;
and protecting the rights and interests of those affected by the exercise of public authority or power”.
90. He submits that whereas Article 157 of the Constitution gives the 1st Respondent the mandate to decide whether or not to prosecute, it is trite law that the said decision to charge, must only be made upon the 1st Respondent being satisfied that the said action is in furtherance of the cause of justice in line with Article 157(11) of the Constitution, as was established in the case of J
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1. The application that is before this court for determination is the one dated 9th June, 2025 wherein the applicant seeks orders:-
1. that this honorable court be and is hereby pleased to issue a judicial review order of certiorari to call-up, remove, deliver up to this honorable court and quash the impugned decision by the 1st, 2nd & Respondents, reposed in the prosecution of the ex-parte Applicant in Milimani Criminal Case No. E034 of 2025 - Republic v Nicholas Alexander Nesbitt & Others instituted vide a Charge Sheet dated 21st January, 2025.
2. THAT this Honorable Court be and is hereby pleased to issue a Judicial Review order of prohibition to restrain the Respondents or anyone claiming under or pursuant to their authority from in any howsoever proceeding with the prosecution of the ex-parte Applicant in Milimani Criminal Case No. E034 of 2025 Republic v Nicholas Alexander Nesbitt & Others or any other such suit premised on the particular as instituted, vide the charge sheet dated 21st January, 2025.
3. THAT the costs of this application be borne by the Respondents on a full indemnity basis.
2. It is the applicant’s case that the impugned criminal proceedings arise from monies exchanged between the1st Interested Party and Bee n Bee Limited pursuant to a Trade Finance Support Agreement dated 23rd May, 2023, entered into between themselves. He was not a party thereto.
3. It is his case that he has been wrongly charged in the impugned criminal proceedings on account of monies paid by the 1st interested party to Bee n Bee Limited, despite not being a director or shareholder of the said Bee n Bee Limited and despite none of the alleged sums having been paid by the 1st Interested Party to the Applicant.
4. It is his case that there is evidence that the commenced criminal prosecution is not only without merit in law. The prosecution machinery is being used unlawfully to harass him and nefariously contrived to coerce him to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that he had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited, which act of introduction does not in any way whatsoever constitute a criminal offence in law.
5. The Respondents have invoked the aforesaid impugned unlawful criminal proceedings against him, in pursuing a claim that does not lie in law; betraying the patent ulterior motives behind the impugned prosecution, by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed.
6. He argues that the impugned criminal proceedings are anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecution which constitutes an abuse of the legal process. He invites the Court to intervene and bring to an end such wrongful exercise of discretion.
7. According to him,the current prosecutorial regime under the Constitution, and the Office of the Director of Public Prosecutions Act, behooves this Hon. Court to investigate the allegations impugning the subject prosecution; and to consequently make a determination thereon as to compliance with the standards prescribed thereon.
8. To hold that the discretion donated to the 1st Respondent by the law, to prefer charges ought not to be questioned by this Hon. Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself.
9. On or about February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars.
10. Upon introducing Mr. Bulent Boytorun to the 2nd Interested Party, he had NO further role to play in any subsequent Agreement and/or transaction between the aforesaid parties he is neither a director nor shareholder of their aforesaid companies nor an agent of any of the said parties.
11. Subsequently, the 1st Interested Party and Bee n Bee Kenya Limited entered into a Trade Finance Support Agreement dated 23rd May, 2023 (hereinafter referred to as "the Agreement"), executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2nd Interested Party on behalf of the 1st Interested Party; with him not being a party to the same and thus having no obligations whatsoever in respect to the said Agreement.
12. He is further aware that all sums that were subject of the transaction were paid by the 1st Interested Party directly to Bee n Bee Kenya Limited.
13. He is not a director nor shareholder of the said Bee n Bee Kenya Limited.
14. No monies whatsoever were remitted by the 1st Interested Party to him, as indeed he was not in any way an agent of Bee n Bee Kenya Limited nor was he a party to the agreement between the 1st interested Party and Bee n Bee Kenya Limited.
15. He is aware that a dispute subsequently arose between the 1st Interested Party and Bee n Bee Limited in respect of the Agreement, resulting in a declaration of the dispute, for the reason that, the contractual relationship between the 1st Interested Party and Bee n Bee Kenya Limited envisaged an arbitral clause for the settlement of all disputes emanating from the Agreement, at Clause 7 thereof.
16. In that regard, the Applicant is further aware that pursuant to the said arbitral clause, arbitration proceedings between the parties to the Agreement, have since been commenced via a Statement of Claim dated 1st December, 2023.
17. Further, the said arbitral proceedings were subsequently concluded and a final award issued by the Hon. Arbitrator thereto, which arbitral award conclusively resolved the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party.
18. It is his case that he was not a party to the said arbitral proceedings as indeed he was not a party to the Agreement between the parties as such, he had no obligations whatsoever in respect of the Agreement between the parties, which material fact clearly establishes that the impugned criminal proceedings against himself have been commenced for an extraneous purpose.
19. He strongly believes that thus it is clear that he is not guilty of any wrong doing whatsoever, having not been a party nor in any way prior to the Agreement between the 1st Interested Party and Bee n Bee Kenya Limited, which has culminated in the charges herein being unlawfully preferred against him.
20. He argues that the unexplained and summary disregard of the ongoing arbitration proceedings before the Hon. Arbitrator, which would conclusively resolve the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party, betrays the absence of legal cause to investigate and prosecute him — which illegality this Hon. Court cannot countenance to proceed.
21. He argues that the exercise of the decision to prosecute him, where clearly it is a civil dispute between the 1st Interested Party and Bee n Bee Limited and the subject of arbitration proceedings evinces patent irreversible violations of my fundamental freedoms, warranting the immediate grant of the orders sought.
22. The impugned charges do not lie in law and have only been instituted in sheer malice at the behest of the 2nd Interested Party, it is critical to note that the complaint in the impugned charge sheet is the 2nd Interested Party, rather than the 1st Interested Party which ought to be the proper complainant in law, taking into account the material facts of the alleged crime.
23. A critical perusal of the particulars of the count purport that, the alleged offence is in respect of monies purportedly stolen from 2nd Interested Party, despite the subject sums having been remitted by 1st Interested Party, a separate legal entity.
24. The basic principle of company law is that the company has a distinct and separate personality from its shareholders and directors and thus invites the Hon. Court to find concurrence with this tenet that dictates that the property of the company is distinct from that of its shareholders and the shareholders have no proprietary rights to the company's property apart from the shares they own.
25. Accordingly, arising from the circumstances above, the basic consequence of incorporation dictates that only the 1st Interested Party has capacity to take action to enforce its legal rights.
26. The 1st and 2nd Respondents though independent offices under Article 157(10), Constitution; remain subject to the supervision of the High Court under Article 157(11), Constitution as read Articles 165(2); & (6) thereof. This supervision and oversight would not in any way howsoever; unduly fetter, restrict or limit the investigative or prosecutorial authority: but conversely serves to balance and check on the possible excesses in the exercise of this power.
27. Further, though the power exercised by the 1st and 2nd Respondent is discretionary, the Court is enjoined to impeach its (ab)use, where it is exercised in bad faith or receive a viciously or interest antithetical to public interest.
28. Public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, state interest may outweigh societal interests: as such it cannot plausibly be in public interest to countenance the use of criminal proceedings as a pawn to coerce a party to submit to an existing civil claim as is sought in the proceedings.
29. He harbors a legitimate apprehension that the charges preferred against me in Milimani Criminal Case E034 of 2025 are actuated by the desire to punish me on account of my refusal to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that I had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited; by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed.
30. It is his case that the charges preferred against him in Milimani Criminal Case E034 of 2025 do not lie under the Companies Act, for want of sanction, as such it cannot be just, lawful, fair and/or equitable to subject me to the rigors and vagaries of a criminal trial against such grave violations.
31. According to him it is unjustified to prejudice, humiliate and embarrass him, putting him to unnecessary expense and agony, erstwhile threatening my liberty and disparaging my business on account of the impugned unlawful criminal prosecution against me.
32. The oppressive and vexatious investigation and now prosecution is contrary to public policy and that the Respondents in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the Respondent) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The Hon. Court has inherent power to interfere with such investigation or prosecution process.
33. In deciding whether to commence or pursue criminal prosecution the 1st Respondent must inter alia consider the interests of the public and must satisfy inter alia that the prosecution is necessary, will enhance public confidence in the law and that the case can be resolved easily by civil process without embarrassing and putting an individual's liberty at risk.
34. According to him it is clear that the impugned criminal proceedings against him in, Milimani Criminal Case No. E034 of 2025 is most unlawful and only designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion.
35. In his further affidavit the Applicant argues that whereas he was previously a director at Bee n Bee Kenya Limited, he resigned from my role as a director therein on 11thMarch 2022 as set out in the letter from the Business Registration Service dated 22nd September, 2023.
36. It is further his case that he resigned as a signatory to the bank account held by the said Bee n Bee Kenya Limited, and further confirm that have had no participation whatsoever in the management and/or running of Bee n Bee Kenya Limited, since 11th March, 2022.
37. According to him, the impugned prosecution is premised on a Trade Finance Agreement entered into between the 1st Interested Party and Bee n Bee Kenya Limited in the year 2023.
38. As rightly admitted at of the 1st and 2nd Respondents' Replying Affidavit, in which year he was not a director nor shareholder nor in any way involved in the management and/or running of Bee n Bee Kenya Limited.
39. The aforesaid Trade Finance Support Agreement dated 23rd May, 2023 (hereinafter referred to as "the Agreement"), was executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2nd Interested Party on behalf of the 1st Interested Party.
40. With him not being a party to the same and thus having no obligations whatsoever in respect to the said Agreement.
41. The alleged USD that was subject of the aforesaid transaction was paid by the 1st Interested Party directly to Bee n Bee Kenya Limited.
42. He argues that no monies whatsoever were remitted by the 1st Interested Party to him.
43. The 1st and 2nd Respondents have not produced any evidence whatsoever to establish that he received and/or in any whatsoever benefited from the sums paid by the 1st Interested Party to Bee n Bee Kenya Limited, that would warrant his prosecution in the impugned criminal proceedings.
44. A perusal of Bee n Bee Kenya Limited's bank statement produced as annexure "EG-I" in the 1st and 2nd Respondent's Replying Affidavit, confirms that, upon Bee n Bee Kenya Limited receiving USD from the 1st Interested Party, no sums whatsoever were transferred by Bee n Bee Kenya Limited to him, as such he did NOT in any way whatsoever receive and/or benefit from the said sums.
45. It is his case that the material background to the impugned criminal proceedings, is that on or about February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars.
46. Materially, he reiterates that upon introducing Mr. Bulent Boytorun to the 2nd Interested Party, he had no further role to play in any subsequent Agreement and/or transaction between the aforesaid parties.
47. It is further his case that whereas I was aware that there were ongoing arbitration proceedings between the 1st Interested Party and Bee n Bee Kenya Limited on account of a dispute that arose in respect of the trade Finance Support Agreement dated 23rd May, 2023 entered into between themselves, he has only recently been made aware that the said arbitration proceedings have been concluded and an Arbitral Award issued thereto.
48. It is his case that he is shocked that the Arbitral award made an adverse finding and/or determination to the effect that he was purportedly an agent of Bee n Bee Kenya Limited in respect of the transaction between the 1st Interested Party and Bee n Bee Kenya Limited, which adverse finding is completely and utterly factually incorrect.
49. It is his case that he wrote to the Hon. Arbitrator, Njeri Kariuki, highlighting that I take great exception to the aforesaid impugned determination against myself, as he has never at any point whatsoever been an agent of the said Bee n Bee Kenya Limited, and further materially that the said impugned determination was made without according him a chance to be heard on the same, contrary to his fundamental right to fair hearing, as enshrined under Article 50 of the Constitution, which right cannot be limited.
50. He demanded that the Hon. Arbitrator immediately recalls the said Arbitral Award and amends the same, removing any adverse inference and he awaits to receive a response from the Hon. Arbitrator in respect of my aforesaid demand and expect a favourable response thereto in as far as deletion of any adverse inference and/or determination in the impugned arbitral award in respect me being an agent of Bee n Bee Kenya Limited, which inference is not only completely and utterly factually incorrect.
51. The aforesaid fact that he was not and have never been an agent of Bee n Bee Limited pertaining the transaction between the Interested Party and Bee n Bee Limited has further been clearly and unequivocally affirmed by Bee n Bee Limited.
52. Indeed, vide a letter dated 29th May, 2025 by the Advocates for Bee n Bee Kenya Limited seeking a review of the decision by the 1st Respondent to charge Bee n Bee Kenya Limited in the impugned criminal proceedings, at paragraph E thereof, it is clearly and unequivocally established that he had no contractual, financial, or operational involvement in the transaction at issue, nor did he hold m any position, interest, or stake in Bee n Bee Kenya Ltd at the time of the transaction.
53. In light of the foregoing, he reiterates that it is certainly clear that he is not guilty of any wrong doing whatsoever, having not been a party nor in any way privy to the Agreement between the 1st Interested Party and Bee n Bee Kenya Limited, which has culminated in the charges herein being unlawfully preferred against him.
54. It is his case that from the foregoing it is thus clear that being charged in the impugned criminal proceedings whereas there is evidence that prima facie the commenced criminal prosecution is not only without merit in law, but is being used unlawfully to harass me and nefariously contrived to coerce him to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that he had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited, which act of introduction does not in any way whatsoever constitute a criminal offence in law.
55. The interested parties have purported that my impugned prosecution is on account of the existence of a separate company, being BNX Partners Limited, which company was not in any way involved in the transaction between the 1st Interested Party and Bee n Bee Limited.
56. Indeed, a perusal of the 1st and 2nd Respondents' entire Replying Affidavit as well as all the documents intended to be relied upon by the 1st Respondent in the impugned criminal proceedings confirms that the said BNX Partners Limited was no in any way involved in the transaction between the 1st Interested Party and Bee n Bee Limited, as indeed the said company has no in any way been adversely mentioned and/or implicated in the impugned criminal proceedings.
57. It is his case that, notwithstanding any similarity of the directorship in any two companies, the inference that two separate companies are the same entity is a misapprehension of the legal personality of companies.
58. Indeed, the principle of Legal Personality of Companies has been upheld by various Courts of law since time immemorial and as such it is trite law that companies are legal entities that are distinct from their directors and/or shareholders as espoused in the locus classicus case of Salomon vs Salomon 18 AC 8.
59. It is his case that it is thus most important to underscore that the said company, BNX Partners Limited, is a separate legal entity from Bee n Bee Kenya Limited notwithstanding any similarity in directorship, as such BNX Partners Limited and/or its directors cannot in any way whatsoever be held liable for any adverse actions and/or omissions undertaken by Bee n Bee Limited.
60. The interested parties further alleged that he is involved in the management of the said BNX Partners Limited on account of a purported website, without producing any official search to prove the said allegation.
61. the said purported excerpt of BNX Partners Limited's website as produced in the 1st and 2nd Interested Parties replying affidavit being electronic evidence, is inadmissible for failure to comply with the mandatorily provisions of Section 106B of the Evidence Act in regard to production of a Certificate of Electronic Evidence.
62. It is his case that despite the foregoing material facts, the 1st Respondent, at the 2nd Interested party's behest, has now invoked the aforesaid impugned unlawful criminal proceedings against him, in pursuing a claim that does not lie in law; betraying the patent ulterior motives behind the impugned prosecution, by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed.
63. In this regard, he argues that this Honorable Court, as the bastion of justice and rule of law, must extend apt constitutionally enshrined protection to prevent a patent abuse of criminal/ prosecutorial process resulting in oppression.
64. The aforesaid impugned criminal proceedings are anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion.
65. He argues that the current prosecutorial regime under the Constitution and the Office of the Director of Public Prosecutions Act, behooves this Hon. Court to investigate the allegations impugning the prosecution; and to consequently make a determination thereon as to compliance with the standards prescribed thereon.
66. According to him, inherently, it is in the interest of the public that this Honorable Court exercises its jurisdiction and upholds its adjudicatory authority to facilitate the order and functioning of public agencies and safeguard my rights.
67. The prosecution has affected his reputation being muddied/tainted, my liberty arbitrarily being deprived, but my business is also threatened with collapse, he the 1st and 2nd Respondents though independent offices under Article 157(10), Constitution; remain subject to the supervision of the High Court under Article 157(11), Constitution as read Articles 165(2); & (6) thereof.
68. This supervision and oversight would not in any way howsoever; unduly fetter, restrict or limit the investigative or prosecutorial authority: but conversely serves to balance and check on the possible excesses in the exercise of this power.
69. Further, though the power exercised by the 1st and 2nd Respondent is discretionary, the Court is enjoined to impeach its abuse, where it is exercised in bad faith or irrespective or for interest antithetical to public interest.
70. The Respondents' decision must evince public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
71. Public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, state interest may outweigh societal interests: as such it cannot plausibly be in public interest to countenance the use of criminal proceedings as a pawn to coerce a party to submit to an existing civil claim as is sought in the proceedings.
72. He argues that there are Constitutional principles which every public officer including the 1st Respondent should take into account in exercising his power and in performing his functions including the supremacy of the Constitution, the national values which includes rule of law, human dignity, transparency and accountability; and fundamental rights and freedoms, an integral part of which includes fair administrative action and right to a fair trial.
73. It is further his case that in deciding whether to commence or pursue criminal prosecution the 1st Respondent must inter alia consider the interests of the public and must satisfy inter alia that the prosecution is necessary, will enhance public confidence in the law and that the case can be resolved easily by civil process without embarrassing and putting an individual's liberty at risk.
74. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.
75. He strongly maintains that the impugned criminal proceedings against myself in Milimani Criminal Case No. E034 of 2025 is most unlawful and only designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion.
76. According to him, the 1st Respondent's decision to charge him is in clear violation of Article & (b), 27(1), 40(1), 47, 157, 232 & 244 of the Constitution as read with Section 4 and 7(2), Fair Administrative Actions Act that enjoins the 1st Respondent to observe and apply the rule of law, as well as equity.
77. It is only fair, prudent and within the overriding objective of this Court that the impugned orders and/or proceedings in Milimani Criminal Case No. E034 of 2025 be quashed.
THE EX-PARTE APPLICANT'S SUBMISSIONS
78. In buttressing his case, The applicant submits that on or about February, 2023, he was acting in good faith when he introduced Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2 nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars.
79. The Ex-parte Applicant submits that by so doing, he had no further role to play in any subsequent Agreement and/or transaction between the aforesaid parties.
80. He further submits that he is not an agent, a director or a shareholder of the aforesaid companies.
81. After the above introduction, the 1st Interested Party and Bee n Bee Kenya Limited entered into a Trade Finance Support Agreement dated 23rd May, 2023 through the agreement that was executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2 nd Interested Party on behalf of the 1st Interested Party.
82. In advancing the above, all sums that were subject of the transaction were paid by the 1st Interested Party directly to Bee n Bee Kenya Limited.
83. He further submits that a dispute subsequently arose between the 1st Interested Party and Bee n Bee Limited in respect of the Agreement, which was referred to arbitration. The ex-parte Applicant was not a party to the said arbitral proceedings.
84. The arbitration culminated in an award that conclusively resolved the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party.
85. He submits that the unexplained and summary disregard of the ongoing arbitration proceedings before the Abritrator, which would conclusively resolve the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party, betrays the absence of legal cause to investigate and prosecute the ex-parte Applicant —which illegality this Hon. Court cannot countenance to proceed.
86. Indeed, the exercise of the decision to prosecute the ex-parte Applicant, pegged on an issue which is a civil dispute between the 1st Interested Party and Bee n Bee Limited and the subject of arbitration proceedings evinces patent irreversible violations of the ex-parte Applicants' fundamental freedoms, warranting the immediate grant of the orders sought herein.
87. This precipitated the institution of the instant proceedings. He submits that judicial review is a central control mechanism of administrative law by which the judiciary protects against abuse of power by public authorities such as the 1 st Respondent.
88. The said role constitutes a safeguard essential to the rule of law by guiding public authorities and ensuring that they act lawfully, are accountable to law and not above it; and thereby protecting the rights and interests of those affected by the exercise of public authority or power.
89. Reliance is placed in the case of Republic v Office of the Director of Public Prosecution & 5 others Ex-Parte Sylvia Wairimu Njuguna [20181 eKLR, wherein the Learned in addressing a similar issue held as follows:
"However, according to Judicial Review Handbook, 6 th Edition by Michael Fordham at page 5, judicial review is a central control mechanism of administrative law by which the _judiciary discharges the constitutional protecting against abuses of power by public authorities, It constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing parameters and duties imposed by Parliament; guiding public authorities and lawfully;
and protecting the rights and interests of those affected by the exercise of public authority or power”.
90. He submits that whereas Article 157 of the Constitution gives the 1st Respondent the mandate to decide whether or not to prosecute, it is trite law that the said decision to charge, must only be made upon the 1st Respondent being satisfied that the said action is in furtherance of the cause of justice in line with Article 157(11) of the Constitution, as was established in the case of J
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