The Kiambu High Court has released an order restraining the Director of Public Prosecution and the Director of Criminal Investigations from arresting or preferring charges against city lawyer Japheth Rupia Change who has been accused of stealing by agent.
Following the ill-fated Ethiopian airline ET 302 crash in 2019, the complainant in this matter Francis Muturi Yongi (now deceased) lost his daughter and he instructed the lawyer Rupia Change to act in Kenya and another Todd Smith to represent him in the United Kingdom in recovering compensation from the manufacturers of the ill-fated plane Boeing Company.
According to Change, the counterclaim compensation for the estate of Yongi was USD 1,445,086.7 of which he transferred USD 1,000,000 and retained the remainder as legal fee as per the agreement between them.
On June 15, 2022, the complainant filed a complaint alleging that Change received USD 1,445,079 on behalf of the deceased’s estate but unlawfully retained USD 445,079 illegally.
Consequently, Change was arrested on April 27, 2024, and spent a night at Muthaiga police station and was to be arraigned in court the following day for plea taking.
The lawyer in his affidavit explained that Yongi had instructed him and Todd Smith to pursue compensation after the accident by filing a case before the Federal Republic of Chicago, Illinois, United States of America.
Todd prepared the contract on how the complainant would be compensated and the same was signed by both lawyers and the complainant.
The contract indicated that both advocates would be paid 28% of the total compensation to the estate and divided it equally.
According to Change says that the criminal complaint is based on allegations that he unlawfully retained 28% of the compensation monies payable to the deceased’s estate.
He contends that the funds were his legal fees and denied the respondents’ claim that his services were offered on a probono basis.
The complaint was made and filed with Advocates Disciplinary Commission and it was dismissed without an order to return 28% of the funds.
Change says that “it would be illogical to accuse him of theft when he have a valid fee agreement.”
Furthermore, he believes that the complaint should be considered as having abated, as it was lodged by a person who is now deceased.
The DPP argues that the retention of part of the money by the applicant as his fees constituted the crime of theft.
He further alleges that the applicant forged documents purported to be the contract signed between Yongi, Change and Todd, a letter requesting the petitioner to move with Todd from his previous law firm to a new law firm and a retainer agreement between the three.
According to LSK being the interested party in the matter, they told the court that there is no complaint of the same from the complainant and Todd whose signatures appeared in the said documents of which one of the documents emanated from Change and another from Todd,
“Your honour there is no complain filed by the parties claiming the said documents were forged. When we consider this submissions by the DPP, they lack merit,” they submitted.
The applicant was seeking the court’s indulgence to declare that the criminal Investigations under inquiry File No. 124/2023 which he was to be charged be declared a shun, unconstitutional, unmerited and illegal.
He also sought the court to issue an order preventing the DPP and the DCI from arresting and quashing the criminal Investigation relating to the said file and a permanent order preventing the respondents or their agents from charging him in court.
In determining the matter, Kiambu High Court judge Justice Dorah Chepkwony considered the submissions by both parties and directed that,
“The criminal Investigations under inquiry File No 124/2023 and the intended prosecution of the petitioner violates his constitutional rights.”
She further gave orders quashing the criminal Investigation relating to the said file and prohibiting the respondents from preferring any charges against him.