The High Court on Monday quashed Sh17 billion tax evasion charges against businessman Humphrey Kariuki and his partners, faulting the police for drafting the charge sheet.
Justice Anthony Mrima said although the police, the Ethics and Anti-Corruption Commission (EACC), and Kenya Revenue Authority have the mandate to investigate crimes, the agencies cannot draft, sign or present any charge sheets in any criminal prosecution.
The judge further quashed a gazette notice by the Director of Public Prosecutions, Noordin Haji, appointing prosecutors from the KRA to handle the case.
“Drawing the above finding to the impugned provision, it means that whereas KRA can investigate any offences relating to tax laws, it cannot prosecute such offences in court,” the judge said.
Justice Mrima said the decision to donate the powers to prosecute to the KRA amounted to usurping the role of the DPP and therefore illegal.
He said the DPP willingly and unconstitutionally abrogated his mandate by appointing three KRA officers to handle the case.
Mr Kariuki had been charged together with directors of Wines of the World (WOW) and African Spirits, including Peter Njenga, Robert Thinji Mureithi, Eric Mulwa Nzomba and Kefa Gakure.
Mr Kariuki and his co-accused faced a charge of being in possession of uncustomed goods -- 80 drums of 250 litres each of ethanol valued at Sh7,402,958 -- without paying tax. They were also charged with omitting from the VAT returns of Africa Spirits Sh2.1 billion and Sh5.9 billion from the excise returns.
Through lawyer Cecil Miller, Mr Kariuki and his co-accused argued that the case seeking to recover Sh17 billion from them was malicious, unconstitutional and without any legal backing because the tax assessment issued to the African Spirits after a comprehensive audit was Sh1 billion.
They argued that their right to privacy was violated when the police and officers from a multi-agency team raided his premises in Thika without search warrants.
Mr Miller argued that a charge sheet originating from the police instead of the DPP was illegal. In the matter, the charge sheet was signed by the officer in charge of Muthaiga Police Station.
The DPP defended his decision to prefer charges, stating that the charge sheet was taken to him by the police upon multi-agency investigations, which he reviewed.
Justice Mrima said in the decision that investigations and prosecutions cannot be conducted by the same entity.
“It goes without saying, therefore, that the National Police Service cannot come up with the final charges which a suspect is to answer to before court. That is within the purview of the prosecutor. As such, the National Police Service can neither draft any charge sheet nor sign any such charge sheet,” the judge said.
The judge ruled that the case ‘lacks any legal leg to stand on’ since the decision to charge was made by the police, who was the investigator.