The High Court in Kisumu has dismissed a petition filed by four foreign nationals seeking to halt their prosecution over an alleged aircraft forgery scheme, upholding the constitutional independence of the Director of Public Prosecutions (DPP) and clearing the way for the criminal trial to proceed.
In a judgment delivered by Justice Joe M. Omido, the court dismissed in its entirety the petition brought by Alfred Geoffrey Leach, David Berry, Michael Allan McKeever and Christopher Bruce Wilhelm, who had sought orders to quash criminal proceedings pending against them.
The petitioners face charges of forgery contrary to Section 349 of the Penal Code and conspiracy to commit a felony contrary to Section 393 of the Penal Code. The charges arise from a 2014 aircraft sale and leasing transaction between Wilken Aviation Limited and Flying Tiger Oversize Cargo Pty Ltd, a deal that later degenerated into disputes over the aircraft’s registration, deregistration and maintenance.
The four had argued that the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP) violated their constitutional rights by investigating, arresting and charging them without prior notice or an opportunity to record statements. They further contended that the dispute was purely commercial in nature, citing an Interpol decision that deleted certain data linked to a red notice issued against one of the accused.
Prosecution Counsel Mercy Mutheu Muema countered that the DPP had acted squarely within the powers conferred under Article 157 of the Constitution, arguing that neither the Constitution nor any statute obligates the state to interview suspects before preferring charges.
In his ruling, Justice Omido found no evidence of constitutional violations, holding that the existence of a commercial dispute does not shield parties from criminal liability where evidence discloses the commission of an offence. “Constitutional litigation cannot be used as a substitute for a criminal trial,” the court stated, dismissing the petitioners’ attempt to use constitutional proceedings to sidestep the pending criminal case.
The petition was dismissed with costs awarded to the DPP, allowing the criminal proceedings in Kisumu to move forward.
The ruling reinforces the DPP’s prosecutorial independence under Article 157 and signals that constitutional petitions cannot be deployed to shield individuals from facing trial where credible evidence of criminal conduct exists, even where a commercial relationship underlies the dispute.
