The Kenya Revenue Authority (KRA) has filed a notice to overturn a decision that quashed charges against tycoon Humphrey Kariuki who was accused of tax evasion amounting to Sh17 billion.
Justice Anthony Mrima on Monday ruled that the KRA cannot be the investigator and prosecutor which he said was an encroachment of the powers of Director of Public Prosecutions (DPP).
The Kenya Revenue Authority (KRA) has filed a notice to overturn a decision that quashed charges against tycoon Humphrey Kariuki who was accused of tax evasion amounting to Sh17 billion.
Justice Anthony Mrima on Monday ruled that the KRA cannot be the investigator and prosecutor which he said was an encroachment of the powers of Director of Public Prosecutions (DPP).
“The KRA maintains the position that the declaration contradicts Article 157(12) of the Constitution which allows Parliament to enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecution,” KRA said.
Justice Mrima declared that section 107 of the Tax Procedures Act is unconstitutional stating that KRA can investigate any offenses relating to tax laws but it cannot prosecute. The DPP had gazetted three officers to prosecute Mr Kariuki and his partners.
The judge also said Ethics and Anti-Corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) and other agencies that prosecute cases in court should cease because they were encroaching on the mandate of the DPP.
Section 107 of TPA allows the Commissioner General of KRA to appear in court personally or may appoint any of his officers to appear on his behalf, subject to the directions of the DPP.
“Coming to the end of this issue, this Court finds and hold that Section 107 of the Tax Procedures Act, 2015 is unconstitutional, that the Gazette Notice No. 3523 published on 15th April, 2021 is also unconstitutional and that the appointments made under the impugned Gazette Notice are illegal,” the judge said.
The judge said the DPP’s move to willingly donate his prosecutorial mandate to KRA by appointing three officers to handle the case, was unconstitutional and the appointments have no legal effect.
Mr Kariuki had been charged together with directors of Wines of the World (WOW) and African Spirits Ltd 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 where the prosecution alleged that he was holding 80 drums of 250 litres each of ethanol valued at Sh7,402,958 without paying tax.
They had also been charged with omitting from the VAT returns of Africa Spirits Limited an amount of Sh2.1 billion and another count of omitting from the return of excise of Sh5.9 billion.
