It is a big win for businessman Humphrey Kariuki after the High Court on Monday afternoon declared his prosecution over Ksh17billion tax evasion unconstitutional.
A judgement delivered by Justice Antony Mrima barred the government from further proceedings with the prosecution of Kariuki and his co-accused case number 1333 of 2019 that is pending before Milimani Chief Magistrate Court.
The judge stopped the ongoing prosecution against Kariuki by KRA prosecutors on grounds that they are not the proper persons to prosecute the case against the tycoon and his co-accused persons as the prosecutorial role in criminal cases in the country is mandated by the DPP.
"That prosecution of criminal offences in Kenya must only be undertaken by lawful prosecutors (being either the Director of Public Prosecutions or such other persons exercising the delegated powers of the DPP under Article 157(9) of the Constitution or the entities conferred with powers of prosecution pursuant to Article 157(12) of the Constitution)," the judge ruled.
Mrima also declared the appointment and gazettement of three KRA special prosecutors namely Sheila Sandra, Peter Mwenda and Irene Muthee as illegal and unconstitutional.
The judge concurred with Kariuki's lawyers Kioko Kilikumi and Ceceil Miller that whereas KRA can investigate any offences relating to tax laws, it cannot prosecute such offences in court.
"It is apparent that the criminal case lacks any legal leg to stand on since the decision to charge was made by the National Police Service who was the investigator. Further, the charges were also drafted by the same investigator and that the prosecution was undertaken by the complainant (KRA)," Justice Mrima stated.
At the same time, the judge issued orders no court in Kenya shall forthwith accept, register and in any manner whatsoever deal with any Charge Sheets not prepared and signed by any of the lawful prosecutors.
"For the avoidance of doubt, given the constitutional and legislative mandates in carrying
out investigations, the National Police Service, the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, the Anti-Counterfeit Agency or any other Government entity mandated with criminal investigation role under any written law, cannot draft, sign and or present any charge sheets in any criminal prosecution," the judges said.
The decision by the court comes after businessman Kariuki challenged the prosecution of his tax case by employees of the Kenya Revenue Authority (KRA) citing a lack of independence and conflict of interest.
Through his lawyers, Kilikumi and Miller, h argued that KRA prosecutors must withdraw from the case to ensure a fair trial.
"The same employees are not only complainers but are also investigators. They are also custodians of some of the exhibits. There's conflict," Miller argued.
In the case, Kariuki was charged alongside Peter Njenga Kuria (Director Africa Spirits Limited), Robert Thinji Murithi (director, WOW Beverages), and Geoffrey Kaaria (Director Africa Spirits Limited), Kepha Gakure (tax manager, Africa Spirits) and Simon Maundu.
