A businessman has failed to overturn a decision directing him to forfeit cigarettes worth Sh34.9 million, which were seized by Kenya Revenue Authority (KRA) in 2018, as un-customed goods, to the taxman.
The Court of Appeal dismissed Mr Abdi Aziz Mohamed Warsame’s appeal saying he was to blame as he failed to table evidence showing that the goods belonged to him and that duties for the cigarettes had been paid.
A lorry driver who was seized with the goods - Mr Elisha Korir was charged before an Eldoret court with conveying un-customed goods and was fined Sh50,000 or one year in prison, in default.
Mr Warsame then moved to the High Court claiming that he, as the owner of the commodity, was condemned unheard.
Justices Mohammed Warsame, Lydia Achode and Weldon Korir ruled it was not clear whether the trader had complied with the tax laws and he cannot, therefore, claim infringement of his right to property in the circumstances.
“In such circumstances, we find that despite the appellant asserting that the goods belonged to him, before the High Court, he did not tender any documents to support this assertion,” the judges pointed out.
The appellant claimed that from evidence adduced before the trial court, it was clear that he had been mentioned as the owner of the seized goods.
Director of Public Prosecutions (DPP) Renson Ingonga opposed the case arguing that the trader had not placed any evidence on record to assert his ownership over the forfeited goods.
“... as we have pointed out, there were two avenues available to the appellant (Mr Warsame) to affirm his ownership and the legality of the goods that were seized. Neither of those procedures was pursued by the appellant,” said the judges.
The judges ruled there were two avenues the businessman could have used to pursue the cigarettes- making an application to the court seeking to show cause why the goods should not be condemned and secondly, the trial court on its motion and based on the evidence before it, issues a notice to the person believed to be the owner of the goods.
The judges added that the second option to apply, the identity of a person believed to be the owner of the goods must be ascertained through the evidence before the court.
