Cecil Miller : Couple charged with stealing from Chase bank were borrowers
A couple linked to fraud at the collapsed Chase Bank actually borrowed the money they are accused of stealing from the financial institution, lawyer Cecil Miller has submitted in a petition seeking to quash their prosecution.
According to Miller, Mohammed Nasrullah Khan and his wife Amira Khan applied for a loan facility from Chase Bank and deposited a title deed as security before the bank was put under receivership.
Miller said the borrowers like any other "have been servicing the loan after it was advanced without defaulting."
"What we have is an abuse of process, an infringement of the borrowers constitutional rights to repay a loan as agreed by the bank," the veteran lawyer submitted.
He said the DPP erroneously charged the couple with stealing Ksh58 million from Chase Bank but in actual sense, they had borrowed the money to buy a property.
Miller questioned the rationale behind pressing criminal charges against the two who he said approached the bank as any other customer would and were advanced a loan.
He has annexed elaborate loan repayment correspondences between the borrowers and the bank, including E-mails between the bank's lawyer and the couple.
"In charging the petitioners, the DPP is violating their constitutional rights and contravening the constitution," Miller said.
He said the case smirked of ulterior motives as the first petitioner was being dragged in for being a blood-brother to the collapsed bank's CEO, Zafrullah Khan, who faces similar charges relating to Chase bank's insolvency.
"It is an abuse of court process and contrary top constitutional provisions," Miller charged.
He reaffirmed that evidence was clear the money in question was loan taken by the brother.
Miller said the constitution entitles the petitioner(s) to the right of equal protection and benefits of the law and prevention from discrimination.
"There are so many other borrowers...why have they not been charged?" he posed.
Miller said a loan that is performing does not amount to a crime and added that the title of the property against which the loan was advanced as security is in the hands of the bank's lawyer to date.
"The fact that the money was taken in the normal process of borrowing is not in dispute," he said adding that the prosecuting the couple amounts to gross abuse of the court process.
He said the petitioners "have been paying back the loan as any other customer…that they were already paying before the bank collapsed, and they have continued paying after the collapse."
Furthermore, Miller told justice Chacha Mwita, the petitioners have been in communication with the bank on the "loan status."
"I submit that these were not stolen funds but a loan facility,” the said.
Miller told the court that the bank itself refers to the funds in question as ” loan status” and in effect, there was no resultant blockage of accounts as naturally follows in cases of stolen funds.
He produced a copy of correspondence where the bank tells the couple to “kindly arrange to clear the arrears"-being arrears of the loan in question.
The DPP represented by Edwin Okello has opposed Miller's prayers on grounds that the police investigated the case and given a chance to prosecute it.
Okello said an affidavit sworn by the investigating officer Inspector Julius Wesonga avers that Chase bank was using an internal account to look like the loan was being repaid while in effect it was being paid by the bank itself and not the petitioners.
"The bank was using its own money top reimburse without narration," Okello claimed adding that there was reasonable suspicion to prosecute the couple
But in a rejoinder, Miller said the investigator then may have failed to understand how the documents he sifted through were to be interpreted in relation to the advanced loan facility.
He said "reasonable suspicion" to prefer charges cannot operate in vacuum but must be guided by constitutional principles.
Judgment on whether to declare the petitioner's prosecution an abuse of court process is on April 13 2018.