Businessman Humphrey Kariuki won big today after the High Court quashed his Sh17 billion tax evasion case, and kicked out police from prosecutorial work.
High Court Judge A. C Mrima said police overstepped their boundary in charging the business and seven others, but also found that Director of Public Prosecutions acquiesced to the unconstitutional power grab.
Senior Counsels Paul Muite and Kioko Kilukumi represented Kariuki in constitutional petition. They were also joined by Gladys Mwangi in turning the tables on the state. Kariuki was joined by his co-accused Geoffrey Kinoti, Simon Maundu, Kepha Githu, Robert Thinji and Peter Njenga in the petition.
Justice Mrima said the court is disappointed: “This Court expresses utter disappointment in that despite Court decisions demarcating the investigative powers of the National Police Service and the prosecutorial powers of the DPP, there has been deliberate and sustained resistance by the National Police Service in disregarding the decisions and continues to usurp the prosecutorial powers of the DPP and the Prosecutors in general."
He said it was deplorable that 12 years into the new Constitution there still is a tug-of-war between the two despite otherwise clear constitutional provisions. He observed that “the DPP has also and variously acquiesced to the usurpation of its constitutional mandate by the National Police Service.”
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In the case preceded by a highly publicized raid and hunt, Kariuki was charged with more than ten counts of tax evasion charges amounting to Sh17 billion. He, however, opposed the charges saying they were instituted by police instead of the DPP, and that the was malice in it all.
He complained that the charges related to enforcement and administration of the tax law, a task he argued is domiciled with the Commissioner-General of Kenya Revenue Authority, through his appointed officers.
He further argued that the police prosecutors appointed by the DPP through a Gazette notice to prosecute tax matters were “partisan and conflicted” contrary to constitutional requirements. He said when police raided his business premises, they carted away and or destroyed all exculpatory evidence.
He also claimed there was already in existence Tax Appeals Tribunal case between his business and KRA which related to Kshs1 billion and not the Sh17 demanded by police. In their response, police dug in on the matter, saying they had all the rights to go for the accused.
But in making his determination, Justice Mrima agreed with Kariuki, and said the police role is limited to investigations while DPP reviews the file and decides the way forward.
“Unless sanctioned by the DPP to arrest suspects or to undertake further investigations over the matter, that is the end of the role of the National Police Service in the criminal justice system,” the judge said.
He said the separation of roles is constitutionally designed for the simple purpose of instilling fairness and confidence in the criminal justice system, eradicating the possibility of conflict of interest or bias between the two organs.
Before 2010, police had powers to conduct investigations into criminal culpability, make decisions to charge, draft charges, stamp them, arrest the suspects and present them to Court. However, after the new constitution, the DPP took over those functions.
The DPP also introduced new, constitution 2010-compliant charge sheets which Justice Mrima described as “more constitutionally-friendly compared to the ones generated by the National Police Service.” He agreed with the petitioners that the KRA gazetted prosecutors were a nullity, and quashed them.
In the judgement, Justice Mrima said given the notoriety of the spat between the two offices, he had to take “more decisive steps in ensuring that the Constitution is respected.”
Consequently, he ruled that 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 lawful Prosecutors.
He said to avoid doubt, the directive covered the police, Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, and the Anti-Counterfeit Agency among others.