The mischief surrounding the investigations involving an alleged loss of Ksh1.6 billion at the collapsed Chase Bank was laid bare in an open Nairobi court as the prosecution insisted the charges against chairman Mohamed Zafrullah Khan are not intended to block him from pursuing specialised heart  treatment in the US.

Khan’s lawyer Cecil Miller while asking the court defer the charges told court the prosecution had initially failed to set aside an order issued by the high court compelling the release of his passport to facilitate his travel and thus resorted to hurry up charges in court.

“As soon as we walked out o the high court(yesterday) the DPP proceeded to file another application seeking set aside the order …and when they failed and were granted an inter parties hearing (today) they rushed to where Zafrullah was, arrested him and told him he was being charged this morning…” Miller said.

Medical emergency

He said the charge sheet at the Chief magistrate’s court was ” a reaction to Zafrullah seeking his rights to travel out of Kenya or a medical emergency.”

Miller  told court that the chairman’s passport was impounded last April but on November 26 2016 he was granted favourable orders to travel out of the country or the same treatment  and return.

“He has since traveled and come back as the investigations went on,” Miller submitted.

He said that after failing to set aside similar order that Zafrullah had won at the high court  the DPP rushed to prepare a charge sheet.

Miller asked the court to defer the plea by virtue that “it is premature, aimed at scuttling the orders of the high court and preventing him from seeking medical care.”

Abuse of legal process

The Senior Counsel submitted that the charges preferred against his client were not related to the two statements he was summoned to record at the height of investigations.

“If charged the ability to enter America in the new Trump administration is almost non existent,’ the lawyer said.

He said charging Zufrullah prematurely in the absence of him having access to  copies of  signed forensic reports relating to Chase bank’s  audits would amount to an abuse of the legal process.

“He is being denied his constitutional rights, he has been denied an opportunity to record a statement in relation to the charges,” Miller said.

Miller said that to force the Chase Bank boss to take a plea before provision  of the items was unfair and unconstitutional.

The lawyer further submitted that the assets in question related to Islamic assets Musaraka were held in trust  and have since been returned with negotiations still on going on how to return the remainder.

He said Chase  bank collapsed in April 2016 and has since been under the control of Central Bank of Kenya(CBK).

Miller said a report had since exonerated his client and that “none of the issues in the charge sheet relate to his statements.”

“If they comply and have reason to charge him we have no problem to take plea…” Miller said.

Apprehensive he may not return

The prosecution said the application for deferral was tantamount to fettering the DPP’s powers.

James Warui Mungai said the suspect was dictating on how and when he can be charged.

Warui said the prosecution was apprehensive that if he leaves Kenya he may not return.

Senior principal magistrate Martha Mutuku is to determine the application.

Zafrullah was  charged with conspiracy to defraud  Chase Bank limited of Ksh1.6 billion alongside seven others who were not in court.

The prosecution wants him detained until the case is heard and determined.