NAIROBI, Kenya, May 23 — The High Court has quashed criminal charges levelled against businessman Humphrey Kariuki and others over alleged tax evasion.
Justice Anthony Mrima agreed with the petitioners that the charges emanated from the Director of Criminal Investigations, whereas the Constitution requires all criminal prosecutions to originate from the Director of Public Prosecutions.
“A declaration hereby issues that prosecution of criminal offences in Kenya must only be undertaken by lawful Prosecutors (being either the Director of Public Prosecutions or such other persons exercising the delegated powers of the Director of Public Prosecutions under Article 157(9) of the Constitution or the entities conferred with powers of prosecution pursuant to Article 157(12) of the Constitution) and as long as such prosecutions are in keeping with (a) above,” Justice Mrima ruled Monday.
He issued and order prohibiting the Chief Magistrate’s Court at Milimani from presiding and/or conducting the trial of the Petitioners.
“No Court in Kenya shall forthwith accept, register and in any manner whatsoever deal with any charge sheets not prepared and signed by any of the unlawful prosecutors,” the court decreed
He said that for the avoidance of doubt the National Police Service, the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, the Anti-Counterfeit Agency or any other Government entity mandated with criminal investigation role under any written law, cannot draft, sign and/or present any charge sheets in any criminal prosecution.
The court agreed with the petitioners that the DCI lacked the mandate and expertise to undertake investigations and/or administer and enforce the tax laws of Kenya and the East African Community region.
“The investigations leading to the institution of the said criminal case were conducted by the National Police Service through the Director of Criminal Investigations, then no officers of Kenya Revenue Authority or the National Police Service could undertake the prosecution of the said criminal case whether as Special or Private Prosecutors or at all,” the judgement read.
The petitioners contended that the tax investigations solely undertaken by the DCI was tantamount to the DCI arrogating itself the duty of enforcing and administering tax laws, an action outside their mandate.
The court ruled that since the National Police Service conducted the investigations leading to the institution of the criminal case, the investigative role of the National Police Service ended once the investigations were completed.
The judge however pointed out that given the potential effect of this judgment in the criminal justice system in Kenya, the judgment would not apply to previously instituted criminal proceedings.
He instructed the Deputy Registrar of the court’s division to immediately transmit copies of the judgment to the Registrar of the High Court and the Registrar of Magistrates Courts for implementation
The judgement was delivered virtually in the presence of lawyers for the petitioners among them Senior Counsel Kioko Kilukumi.
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