Prominent property developer George Katsimberis has made a High Court application seeking an order compelling the Prosecutor-General to issue him with a private prosecution certificate against businessman Ken Sharpe.
Katsimberis is suing Sharpe in his personal capacity for fraud emanating from a botched joint venture agreement in 2016 in which the property developer suffered a US$1 million financial prejudice after the businessman’s misrepresentations.
He reported the case to the police under case numb CRB CR 246-11-18 (CCD Ref DR 117-11-18) but the PG has been refusing to prosecute Sharpe, hence his decision to apply for a certificate of private prosecution.
Through his lawyer Charles Warara, Katsimberis said despite several letters from his lawyers, the PG has been reluctant to prosecute Sharpe.
“We make reference to our letter of 10 November 2023,” Warara wrote in a letter dated January 12, 2023.
“As you are aware, you have a duty to avail to issue a certificate nolle prosequi as requested. We duly complied with your request for our client to sign an affidavit. We threatened to go to court in our letter of 10 November 2022, but you have not responded at all.”
Warara added: “We are by this notifying you that we are proceeding as threatened earlier since you have chosen to be difficult.”
Karsimberis and Sharpe, through his company which he posed as the managing director, Pokugara Estates, entered into a joint venture agreement to form Pokugara Ecofriendly Estates.
According to the agreement, Sharpe was supposed to provide land while Katsimberis would provide finances for the project.
After Katsimberis had parted ways with US$883 728 -28 towards the development of stand 19559 into 21 stands, Sharpe surprisingly cancelled the agreement claiming it was a legal nullity because his company was called Pokugara Properties, not Pokugara Estates.
Katsimberis reported the case to the police, but the National Prosecuting Authority refused to prosecute Sharpe, who also caused the demolition of a house that had been constructed by the property developer claiming it had no valid plan, an issue that is still raging before the court.
He argued that Sharpe received the money sent to him on his NMB account and cannot purport to be the managing director of a non-existent company. Sharpe, Katsimberis said, cannot benefit from his fraudulent actions.
Before approaching the High Court, on July 27, 2022, Warara wrote to the PG making the same demand but was not responded to.
“Our client reported one Kenneth R Sharpe in the above matter and a police docket was prepared after which the matter was brought to your attention The results of your assessment of the docket are shat your office declined to prosecute the accused,” Warara wrote.
“That decision was, as we are instructed forwarded to the police but nothing formal was furnished by our client. We are instructed to request the nolle prosecute certificate in light of your decision to decline to prosecute.”
In his founding affidavit dated February 6, 2022, Katsimberis said he was applying for the certificate because the PG has declined to prosecute Sharpe after he reported him to the police under case number CRB CR 246-11-18 (CCD Ref DR 117-11-18).
He said letters written on July 26 and August 19 were not responded to.
He said on August 19, the PG wrote back to his legal practitioners acknowledging receipt of the letters and in turn advised that for them to consider the request, Katsimberis had to comply with the provisions of Section 16 (2) of the Criminal Procedure and Evidence Act, [Chapter 9:07]. See Annexure GK3, which he had already done.
“Following the contents of the letter attached above, I complied with section 16 (2) of the Criminal Procedure and Evidence Act by producing a written request in the form of a sworn statement highlighting that I had suffered personally as a direct consequence of the offence by Kenneth Raydon Sharpe and lost financially due to the misrepresentation of the accused,” Katsimberis said.
“I also averred in my affidavit that I had the means to conduct the private prosecution promptly and timeously through my legal practitioner.
“On the 10th of November 2022, my legal practitioners wrote to the respondent requesting a reply within five days as the respondent had taken long to attend to the affidavit and the letter sent on September 16, 2022. The respondent was advised that the matter was proceeding to court after the lapse of the fifth day as they had failed to enforce my rights.
On January 11, 2023, he said his legal practitioners wrote a final letter to the PG advising him that they were proceeding with the court action to compel him to issue the private prosecution certificate.
The PG, Katsimberis said, called his lawyers requesting an affidavit from Sharpe.
“It is not clear why they want my legal practitioners to supply this. However, it shows that they are not attending to my matter with the diligence it requires,” he said.
“The respondent did not give a reason for the reluctance in granting me the certificate of nolle prosecution which is in turn depriving me of my rights.”