The Kenya Revenue Authority (KRA) has filed a petition against a Court ruling that quashed billionaire Humphrey Kariuki’s KShs. 17 billion tax evasion case.
The taxman maintains holds that the ruling ‘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.”
Justice Anthony Mrima pardoned Mr. Kariuki saying that KRA cannot be the investigator and prosecutor and that KRA had encroached on the powers of the Director of Public Prosecutions (DPP).
The Court stated in its ruling that section 107 of the Tax Procedures Act is unconstitutional stating and that the taxman is only restricted to investigations of tax laws but does not have prosecutorial powers.
The judge mentioned that among other agencies, KRA, the Ethics and Anti-Corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) should stop prosecuting cases because they were encroaching on the mandate of the DPP.
KRA, EACC, DCI and ODPP under the Multi-Agency framework, collaborate on investigation of suspects and prosecution of the same through intelligence sharing. Section 107 of Tax Procedures Act allows the Commissioner General of KRA to personally be in Court during a case or to appoint a representative officer who will be directed by the DPP on the procedures.
“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,” Justice Mrima said.
Justice Mrima however stated that it was unconstitutional for the DPP to donate protectional powers to KRA and any further delegation of power had no legal effect.
In the case against billionaire Kariuki, the accused was charged with other directors of Wines of the World (WOW) and African Spirits Ltd including Peter Njenga, Robert Thinji Mureithi, Eric Mulwa Nzomba and Kefa Gakure.
The accused were charged for being in possession of uncustomed goods including 80 drums of 250 litres each of ethanol valued at KShs.7,402,958 without paying tax. Further, the taxman stated that they omitted the VAT returns of Africa Spirits Limited worth KShs.2.1 billion and excise valued at KShs. 5.9 billion.