AG opposes importer's application for release of sugar under probe

The Attorney-General has termed as an abuse of the court process an application by a sugar importer seeking an order to quash Inspector-General of Police's decision to seize and detain his 1,000 metric tonnes of sugar imported from Zimbabwe.

Through litigation counsel Emmanuel Makuto, the AG says the application by Hussaba Trading Company Ltd is meant to move the sugar beyond the jurisdiction of the court in order to defeat ongoing investigations.

The company is also seeking to have the IGP or the regional criminal investigation officer at the Coast prohibited from detaining the sugar.

According to the company, the sugar and trucks have been detained at the regional criminal investigations coordinator’s offices in Mombasa.

Mr Makuto says any vessel or vehicle used in the conveyance of un-customed or prohibited goods is liable to forfeiture under the East African Community Customs Management Act.

“A customs officer, police officer or an authorised public officer has power to seize and detain any vessel or vehicles liable to forfeiture,” argues Mr Makuto in his grounds of opposition to the application.

Reasonable grounds

Mr Makuto further says that a customs or a police officer has the power to seize and detain such a vehicle.

This, he adds, is regardless of the fact that any prosecution for an offence under the Act (EACCMA) which renders the commodity liable has been or is about to be instituted.

Mr Makuto further says that where a person seizing and detaining the commodity which may be required for use in connection to court proceedings is a police officer, he is given power to keep it in his (police) custody until they (proceedings) are completed.

Hussaba Trading Company Ltd claims that on July 27, the regional criminal investigations coordinator, acting as an agent of the IGP, impounded the sugar loaded on trucks and trailers that were on transit for delivery to customers.

“The sugar had been tested and approved by the Kenya Bureau of Standards and all statutory inspection agencies as fit and wholesome,” the company argues in its application.

The company also argues that the sugar is lying in an open yard exposed to harsh, humid and hot weather and is in imminent danger of wasting.

It also argues that the consignment of the sugar had also undergone Kebs laboratory tests whose results confirmed that it complied with the requirements of standards as set out by the agency.

“The consignment of sugar had also been verified by the Kenya Revenue Authority, multiagency joint verification team and a witness form signed by all the verifying agencies including the National Police Service,” part of the suit documents state.

Paid duties

Hussaba Trading Company Ltd also claims that it had paid the requisite duties, taxes and all other port clearing charges.

It argues that the impounded sugar originated from Zimbabwe and Comesa certificate of origin was issued.

“Kebs had also confirmed that samples of the sugar consignment had been taken and an import sampling form had been duly completed and signed,” argues the company.

It argues that having complied with all import laws, it legitimately expected that the sugar would be supplied to the market as was the case on July 27 until police seized it without giving any reasons.

“The respondent in spite of numerous requests made by the applicant to release the sugar has declined to release it and continues to detain it in harsh weather conditions, which is a violation and breach of law,” the company argues.

In his affidavit, Mr Yusuf Alibhai, a director of the company says it (company) stands to suffer loss and its operations shall come to a halt unless the respondents are restrained by the court.

The application will be heard on August 24.