One of the three intended interested parties in the Savannah Heights director’s suit has filed an urgent application seeking to be joined in Miscellaneous Criminal Application they argue threatens to reopen issues already settled by a constitutional court.
The applicants Donald Kiboro Mwaura, John Gachanga Kaiganaie and Savannah Heights Limited through their lawyers Danstan Omari, argued that their inclusion is necessary to prevent what they describe as an abuse of the court process.
At the centre of the dispute is an earlier application by businessman Benson Sande Ndeta, who is seeking to stay criminal proceedings before a Milimani Chief Magistrate’s court.
But the intended interested parties claim this matter has already been considered and dismissed by the High Court.
According to court documents filed on April 13, the same parties previously sought identical relief at the high court.
In that matter, Justice Bahati Mwamuye dismissed the bid to stop the prosecution, finding that the Director of Public Prosecutions had acted within its constitutional mandate under Article 157 of the Constitution.
“The honourable Justice Mwamuye held that the Director of Public Prosecutions had not abused its prosecutorial discretion, had not acted in bad faith, and that the prosecution was instituted within the constitutional and statutory mandate,” reads a supporting affidavit by Kaiganaie.
The High Court matter stems from a criminal case filed in November 2024 at the Milimani Magistrates’ Court, in which Ndeta and his co-accused, Charles Hills Jr, face fraud charges linked to a Sh4.5 billion (approximately $35 million) credit facility obtained from Absa Bank Kenya between February 2017 and January 2018.
Prosecutors have filed 12 criminal counts, including conspiracy to commit fraud and obtaining credit by false pretence.
According to the charge sheet, Hills allegedly induced the bank to accept six corporate guarantee security documents, as well as forged extracts of board meeting minutes from Savannah Heights Limited.
Ndeta faces several counts relating to allegedly creating and presenting unauthorised corporate documents, including a guarantee and indemnity form, a subordination agreement, and extracts of company board minutes all of which prosecutors say were submitted to the bank as legitimate approvals.
Investigators allege the two men misrepresented themselves as acting on behalf of Savannah Cement Limited while securing the loan.
Ndeta first appeared in court after the case was filed in November 2024, but the proceedings were temporarily halted after he obtained orders from the High Court suspending the case pending the outcome of his constitutional petition.
However, in December 2025, the High Court dismissed the petition, allowing the prosecution to proceed.
The lawyers for the intended interested parties argue that the current application raises “substantially the same issues” as those already conclusively determined, calling it “an impermissible attempt to re-litigate” and “an abuse of the process of this Court.”
They further dismiss Ndeta’s reliance on a civil case HCCOMM No. E081 of 2023 (Savannah Heights Limited vs Seruji Limited & 8 others) arguing that civil proceedings cannot determine criminal liability.
“The validity of the resolutions does not exclude criminal conduct,” the notice of motion states.
Omari who has said the application is extremely urgent, is asking the court to hear the matter on a priority basis “before any further directions are issued” in the main application.
The court has been asked to join the three parties as 2nd, 3rd, and 4th interested parties respectively.
The Office of the Director of Public Prosecutions is already listed as the 1st interested party.
“The issue of joinder ought to be dispensed with at the earliest opportune time, as it will be in the best interest of substantive and progressive justice,” read the court documents.
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