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Former Kandara MP’s bid to reopen MultiChoice tax fraud row flops
The South African pay-TV firm, which locally broadcasts the popular DStv sports channel, claimed that Mainkam failed to remit the amount to the KRA over four years.
The Court of Appeal has rejected an application by former Kandara MP James Maina Kamau, seeking to reopen a long-standing Sh153 million tax fraud dispute with South African pay-TV firm, Multichoice Kenya.
Mr Kamau and Mainkam Ltd wanted the court to allow them to furnish new evidence to prove that he had paid the millions on behalf of Multichoice to the Kenya Revenue Authority (KRA) for imported satellite dishes and decoders.
Multichoice successfully sued the Mainkam- a clearing agent -for a refund of the millions it lost as a result of the non-remittance of the money, over a period of four years. The fraud was unearthed by a KRA audit on its books.
Mr Maina said he did not have the documents before the judgment was delivered in 2019.
The South African pay-TV firm, which locally broadcasts the popular DStv sports channel, claimed that Mainkam failed to remit the amount to the KRA over four years.
He said the documents were in KRA’s custody and could not, with reasonable diligence, have been obtained earlier, and the evidence was material and likely to influence the outcome.
The politician said he believed that they had an arguable appeal with high chances of success. He said they were exceptional circumstances that justified the additional evidence.
Justices Wanjiru Karanja, Kathurima M’Inoti, and Lydia Achode, however, questioned why it had taken Mr Maina and his firm eight years to get the documents.
The judges said no explanation has been tendered as to why the discovery could not have happened earlier with the exercise of due diligence.
The court also noted that the bank statements sought to be tabled belonged to the company and must have been in their custody all the time, and if they were not, they should have applied to their banks to be supplied with the statements.
“We note further that the highlighted entries, on which the applicants seek to rely, do not indicate who the payee was or the purpose to which they were to be applied. They only present evidence that the bankers’ cheques were purchased,” said the judges.
The court added that the said documents are contested in terms of credibility, lacking verification or a clear nexus to the customs entries.
“In our view, their potential influence on the result of the case is, at best, speculative. We are doubtful whether the said documents, as they are, absent authentication, would have any evidential value in aid of the applicant’s case,” said the judges.
The appellate court judges said that re-opening the case after so many years would definitely be prejudicial to Multichoice and that “equity does not aid the indolent”.
