Win for Humphrey Kariuki as Sh17bn Tax case stopped

The High court has quashed the Sh17 billion shilling tax evasion charges levelled against Businessman Humphrey Kariuki and seven others.

Justice Anthony Mrima prohibited the Milimani Chief Magistrates Court from hearing and proceeding with the charges levelled against Humphrey and his co-accused and further quashed the decision by the National Police service (NPS)to prefer the charges.

The Judge ruled that the National Police service cannot on its own motion institute investigations relating to the tax laws.

“Once the National Police service conducts and completes any investigations and makes recommendations then unless sanctioned by the DPP to arrest suspects or to undertake further investigations over a matter, that is the end of the role of the NPS in the criminal justice system. The matter is then taken over by the DPP,” he said

The role of an investigator he said ends with the collection of evidence and making recommendations. Any other step which follows cannot be under the mandate and authority of NPS.

Humphrey through lawyers Kioko Kilukumi and Cecil Miller moved to the high court challenging the tax evasion charges against them.

They claimed the charges emanated from the Director of Criminal Investigations yet the constitution requires all criminal prosecutions to originate from the Director of Public Prosecutions (DPP)

They also argued the DCI lacked the mandate and expertise to undertake investigations since the charges related to the enforcement and administration of the tax laws.

They said DCI arrogated himself duties outside his mandate and that the decision by the two agencies to charge seeking recovery of Sh17 billion was malicious and unconstitutional and without any legal backing as the tax assessment issued after a comprehensive audit was Sh1 billion.

On Monday, Justice Mrima said except for the charge sheets prepared and signed by the DPP,  no court in Kenya will  accept, register and in any manner deal with any charge sheets not prepared and signed by the lawful prosecutors.

For the avoidance of doubt, Mrima said the National Police service, the Ethics and Anti-corruption Commission, the Kenya National Commission on Human Rights, the commission on the administration of justice, the Kenya Revenue Authority, the anti-counterfeit agency or any other government entity mandated with criminal investigation role, cannot draft, sign or present any charge sheets in any criminal prosecution.

He however clarified that his decision shall not apply to previously instituted criminal proceedings.

The DPP had in April last year issued a gazette notice appointing three officers of KRA to prosecute the Humphrey case.

A gazette notice was put in place indicating Sheila Sandra, Peter Mwenda and Irene Muthee to be the prosecutors. 

But Mrima quashed the notice, terming it unconstitutional. He said the DPP was willingly and unconstitutionally permitting its prosecutorial mandate to the KRA.

This article was written by The Star on 23/5/2022.