NAIROBI, Kenya, Dec 8 – Businessman Humphrey Kariuki and his co-directors were on Tuesday acquitted in a criminal case involving Sh7.4 million tax evasion claims after the Director of Public Prosecutions failed to avail witnesses.
Principal Magistrate Kennedy Cheruiyot said he made the decision because the matter had been pending in court for the last one year and four months.
While freeing Kariuki and Wow Beverages directors Robert Thinji Muriithi and Africa Spirits Directors Peter Njenga Kuria and Geoffrey Kaaria Kinoti, Eric mulwa, Kepha Githu Gakure, Milimani senior principal Magistrate Kennedy Cheruiyot faulted the office of the Director of Public Prosecutions (DPP) for failing to avail evidence yet the case has been pending in court for 16 months.
“The prosecution is not ready to present any evidence, even after being given three days to do so, this court is only left with no option other than to invoke the provisions of section 202 of the Criminal Procedure Code,” said the Magistrate
Cheruiyot, however dismissed the two charges facing the accused persons and acquitted all the accused persons under section 202 of the CPC after the prosecution failing to be ready to prosecute the case.
The provision provides that if, the complainant having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall then acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date.
The move to discharge the accused person came after the magistrate decline to allow further adjournment as sought by the DPP on Monday to allow him consolidate the case with other two cases pending before different courts.
The magistrate also concurred with the defence lawyers led byKioko kilukumi and Cecil Miller that the application by DPP to stay the proceedings is unreasonable and unjustified and further held that it is against the public interest and interest of justice to adjourn this case as sought by the prosecution.
“I find and hold that to allow adjournment of this case indefinitely pending consolidation that will be in vain and amendment of charge that is unnessary and inconsequential would amount to denying persons their right to have the trial begin and conclude without unreasonable delay as provided in article 50(2)(e) of the constitution,” ruled Cheruiyot.
Kariuki through Kilukumi had argued that it is an abuse of court process for the DPP to wait for one and half years for him to write to the court on his intention to consolidate his cases on December 4.
He said the move by the DPP is an abuse of court process and was denying them their right to fair hearing.
When the accused persons were charged in court last year, the DPP opened three different files on several counts including forgery, money laundering and tax evasion.
It is alleged that in January last year at Africa Spirits and Woew Beverages within Thika Town in Kiambu County, he and his co-accused were found in possession of eighty drums of 250 litres each with ethanol inside a trailer truck valued at shs 7.4 million without payment of the relevant duty.
The other two cases are however still pending before Magistrate Francis Andayi and Martha Mutuku.
The defense lawyers had raised concerns over the continued adjournments whenever the case was scheduled for trial.