DPP appeals tycoon acquittal in Sh7m tax evasion lawsuit

 The Director of Public Prosecution Noordin Haji has filed an appeal against a decision to acquit billionaire businessman Humphrey Kariuki.  

Four days after Milimani Senior Principal Magistrate Kennedy Cheruiyot acquitted Kariuki and six others of charges of being in possession of un-customed ethanol of Sh7.4 million and tax evasion, Haji terms the decision unfair, saying the acquittal was without any factual or legal basis. 

DPP wants the High Court to quash or set aside the decision to acquit the billionaire and his co-accused Peter Njenga, Robert Thinji, Eric Mulwa, Kepha Gakure, African Spirits limited and Wow Beverages limited   

“We seek the court that the acquittal order be quashed and or set aside,” says the DPP.

Start afresh

Through State Counsel Carol Sigei, Haji,  also wants the court to direct the matter to start afresh before another trial magistrate of competent jurisdiction.

In his appeal, the DPP argued that the magistrate erred in failing to discharge his judicial duties of maintaining an accurate and proper record of the proceedings before him, thus the entire proceedings are a nullity and the magistrate considered irrelevant or extraneous matters thus arriving at unjust decision in law.

DPP has also accused the magistrate of claiming that the court had the right to intervene and exercise control over the Director of Public Prosecutions’ exercise of State powers of prosecution yet at paragraph 26 of the ruling, “the learned trial magistrate went on to observe that the court would be deemed to be interfering with the DPP’s discretion as to who to call as a witness, what to present as evidence or exhibits and by whom, how many witnesses to call and when to close the prosecution’s case”.   

 According to the prosecution, the magistrate was wrong in entertaining arguments that persons charged under different statutes though arising from the same transaction cannot have their cases consolidated, yet the provisions of section 134, 135, 136 and 137 of the Criminal Procedure Code CAP 75 do permit such a consolidation.

DPP observes, therefore, the magistrate erred by failing to invoke the provisions of section 76 of the Criminal Procedure Code, CAP 75 by referring the matter to the High Court if he was not certain about which court between Chief Magistrate Francis Andayi and Martha Mutuku would have the necessary jurisdiction to consider the question of consolidation and the number of counts resulting from such consolidation as well as whether the accused  could be tried for offences under different statutes in the same charge sheet.  

 On December 7, Cheruiyot acquitted the accused, saying the prosecution has not been ready to present any evidence in court even after scheduling the case to be heard on a back-to-back basis for three days.

“Since the prosecution is not ready to prosecute this case, I proceed to dismiss both charges and acquit the accused persons under section 202 of the criminal procedure code,” he said. 

Cheruiyot said he found no reason that makes it proper or appropriate to adjourn the hearing of the case.

This was after the DPP asked the court to adjourn the matter to allow them consolidate the case with two others facing Kariuki before different magistrates.