Shareholders of Savannah Heights Limited, one of the founders of Savannah Cement, want the High Court to halt the delivery of judgment in a petition lodged by their former business partner, Benson Ndeta, challenging his prosecution for alleged Sh4.5 billion bank loan fraud.
Donald Kiboro Mwaura, John Gachanga Kaiganaine and Savannah Heights Ltd want the Constitutional and Human Rights Division to suspend the judgment scheduled for July 8, citing new evidence.
The trio were officials at the cement maker before it collapsed in 2022 under a Sh14 billion debt burden and its acquisition by a consortium of investors in 2025 through a newly registered entity, Savannah Cement 2025 Limited.
Mr Mwaura and Mr Kaiganaine say all parties should first address a pending commercial derivative suit over the governance of Savannah Cement and the approval of the disputed $35 million (Sh4.5 billion) bank loan.
In September 2025, the commercial court issued a ruling that classified some issues as "new and important evidence", prompting it to set aside its earlier judgment and schedule a fresh one.
The application stems from a constitutional petition filed by Ndeta, former Savannah Cement chairman, seeking to stop his prosecution over accusations that he and co-accused Charles Hill Jr fraudulently secured the Absa Bank loan using forged corporate documents.
The applicants argue that the September 2025 ruling in the related commercial dispute was never canvassed by the parties before the court fixed a new judgment date.
"Given that there is now 'new and important evidence' that was previously not on record, it is only fair that the Interested Parties, and the Petitioner and respondents, should they so choose, address the court on the same," the application says.
In a supporting affidavit, Mr Kaiganaine says the commercial ruling dealt only with whether Savannah Heights directors had received notice of meetings that approved the borrowing and did not determine whether fraud had occurred.
"There remains a question of possible fraud," he says, adding that the parties should be allowed to explain "why the ruling... cannot be grounds for stopping the Petitioner's prosecution."
The affidavit says DCI investigations later recovered extensive banking and corporate records from Absa Bank, including loan offer letters, debentures, guarantees, subordination agreements, board resolutions, land charge documents and correspondence relating to the $35 million loan facility.
According to the applicants, investigators also obtained a corporate guarantee and board resolutions allegedly executed on behalf of Savannah Heights by Ndeta and Charles Hill Jr.
Mr Kaiganaine says Mr Charles Hill Jr "has never been a Director of Savannah Heights Limited" and contends the documents therefore raise "the question of possible fraud on the part of the Petitioner and Charles Hill Jr."
The affidavit further states that the bank accepted the documents presented by Mr Ndeta when processing the facility.
It says the relationship manager recorded a statement with investigators "admitting that ABSA Bank Kenya Limited accepted the documents as delivered by the Petitioner, enabling ABSA Bank Kenya Limited to issue the facility."
The applicants also complain they have not been supplied with witness statements and documentary exhibits in the criminal case despite being complainants and despite obtaining court orders directing disclosure.
"Despite the Petitioner having taken a plea, we were not supplied with the witness statements and documentary evidence that was to be relied on during the criminal trial," Mr Kaiganaine says.
The criminal case accuses Mr Ndeta and Mr Hill of conspiring to obtain the $35 million facility by presenting allegedly forged corporate guarantees, indemnities and board resolutions to Absa Bank between 2017 and 2018. Both deny the charges.
Savannah Cement collapsed under heavy debt and its assets were acquired in 2025 after years of shareholder disputes, lender claims and protracted litigation over the company's governance and borrowing.
