According to the trial judge, businessman Muktar Saman Olow who has since been arrested and charged with forgery, did not deserve the prohibitory orders he sought against his prosecution.
The judge ruled that allegations of fraud are criminal and actionable, and thus only through prosecution can the matter be brought to rest when the accuser presents his/her evidence and the defence rebuts it for determination.
“It could be a miscarriage of justice if this court would make a finding on the innocence of the applicant…” justice Roslyn Aburili charged.
The judge also rejected an oral submission by the billionaire businessman soon after the judgement, seeking a 30-day stay against the judgement vacating his stay of prosecution at the Kiambu Law courts!
Justice Aburili said in determining Olow’s request for a stay against his prosecution she was aware the case he faces “involves documents, to be examined” and that if she delved into such nit-gritty, like if, a daughter of Nairobi Women Rep Esther Passaris former husband, billionaire businessman Pius Ngugi, an interested party in the suit, lived in the dispute property.
The judge said descending into such detail “may prejudice the criminal proceedings and pending Civil suits involving the disputed property.
Goons threw out Ngugi’s daughter and demolished the property on the strength of a Title Olow wielded in claim.
She said she would be instead applying her mind to if the charge of stealing was warranted and the alleged forgery of documents pertaining to the suit property in Westlands, Nairobi.
The judge said “forgery ” is a substantive matter for testing at a trial court.
“This court thus refrains from making any finding…the applicant says he has a genuine title, this court cannot determine the genuineness of the title,” justice Aburili explained, adding that the prosecution, on the other hand, avers that “signatures of and registrars were forged to obtain the title.”
She said social media reports regarding the case which complained of by Olow have “no evidence of malice.”
“There is equally no evidence of abuse of power…I am unable to find that the prosecution of the applicant is an abuse of the court process,” the judge said.
The judge said the owner of the dispute property was long dead and could not have sold the land to the applicant!
“This matter is not frivolous, the trial court is best placed to determine the evidence placed before it, it is clear there exists a dispute yet to be resolved, the disputing parties should not take law into their hands…the court cannot interfere with lawful police action,” justice Aburili said.
She explained that she cannot stop the DPP and the DCI from charging who they find culpable.“The DCI and the DPP can mount investigations and prosecution of the applicant,” she said adding that she found no evidence that the DPP was achieving collateral damage through ulterior motives.
She advised Olow that the best forum to persuade court on the merits of his complaint that he was being framed is through the criminal trial in Kiambu.
The judge said Olow had failed to demonstrate any personalised link to attach to malice in his prosecution.
Olow in the Kiambu court is charged with forging title deeds for the contested prime plot.
The suspect, Muktar Saman Olow, is accused of falsifying a tittle deed No. 17583 for land registration number 1870/1/240, purporting it to be a genuine entry made at the Land Registrar’s office.
Olow, however, denied the charges and was released on a cash bail of Ksh150,000 with an alternative of a bond of Ksh500,000 and a surety of similar amount.
Passaris has two children with Kenyan businessman Pius Ngugi.