Court acquits liquor billionaire Humphrey Kariuki in ethanol case
A Nairobi court has acquitted billionaire businessman Humphrey Kariuki in a case where he was charged with being in possession of 80 drums of uncustomed ethanol worth Sh7.4 million.
The ethanol case was found at his Thika Town beer factories – Africa Spirits Limited (ASL) and Wow Bevareges Limited (WBL).
While acquitting the businessman on Tuesday, Senior Magistrate Kennedy Cheruiyot said the office of the Director of Public Prosecutions (DPP) has not provided evidence yet the case has been pending in court for 16 months.
Mr Cheruiyot cleared Mr Kariuki alongside six other people, including ASL and WBL directors Peter Njenga, Robert Thinji Mureithi, Eric Mulwa Nzomba and Kefa Gakure.
Defence lawyers Kioko kilukumi, Cecil Miller and Philip Murgor had asked the court to invoke section 202 of the Criminal Procedure Code and acquit the accused.
"This court finds the DPP has not [presented] witnesses. l acquit the accused under section 202 of the CPC for want of prosecution," ruled Mr Cheruiyot.
Mr Kariuki, who is the proprietor of Africa Spirits Ltd and WOW Beverages Ltd, was charged after a consignment of 250-litre drums were found at Africa Spirits Ltd's premises following a raid in January last year.
Mr Cheruiyot slammed the DPP for failing to provide evidence expeditiously t support the case as required.
The magistrate said the DPP failed to observe Article 50 (2) (e) of the Constitution, which calls for a fair trial through expeditious disposal of a criminal case.
Mr Cheruiyot also concurred with the defence lawyers, who said the case has been pending in court for the last 16 months with no signs of progressing.
Mr Kilukumi, Mr Murgor and Mr Miller said the delay amounts to a waste of their time, the Judiciary's and the accused's, who are supposed to be engaging in meaningful economic engagements.
“The delay in leading evidence in this case amounts to violating the fundamental and constitutional rights of the accused who have religiously attended this trial for 16 months,” said Mr Cheruiyot.
The magistrate further said the DPP had no evidence but sought to have all the three cases against the suspects consolidated.
Mr Kariuki is charged with evading taxes amounting to Sh41 billion and being in possession of uncustomed ethanol as well as fake duty receipts.
He is not yet out of the woods as tax evasion fake customs duty receipts cases are pending.
The DPP told the magistrate that the cases should be consolidated as the witnesses and exhibits are the same.
In his ruling Mr Cheruiyot said, “I find and hold that whereas the DPP has authority to prosecute criminal cases and determine how such cases are conducted, the authority must be exercised within existing rules of procedure and practice.”
He said once a case is taken to court the rules change and that the application by the DPP to stay the proceedings indefinitely pending consolidation is unreasonable and unjustified.
"I therefore hold that it is against public interest and the interest of justice to adjourn this case as sought by the prosecution.”
The magistrate ruled that the request to adjourn the case indefinitely pending consolidation will be in vain.
He said the impending amendment of charges is unnecessary and inconsequential as it will amount to denying the accused persons their right to have the trial concluded without unreasonable delays as provided in article 50(2)(e) of the Constitution.
“l find no reason that makes it proper, appropriate or expedient to adjourn the hearing of this case,” Mr Cheruiyot said.
Immediately after the magistrate freed the accused, Mr Kilukumi , Mr Murgor, Mr Miller and Ms Rubeena Dar applied for reimbursement of bonds and cash bails deposited earlier for their release.
Mr Cheruiyot allowed the plea.
This article was published by The Nation on 9/12/2020.