BY SAM ALFAN.
A former Kenya Revenue Authority manager has suffer a setback after the High Court dismissed his application to quash his prosecution over tax evasion claims.
High Court Anti-Corruptuon court judge Mumbi Ngugi dismissed the petition by Giche Limited and it is two directors Joseph Chege Gikonyo and Lucy Kangai Stephen saying there was no evidence that their rights had been violated.
“The petition fails and the Petitioners are not entitled to the orders that they are seeking,” said Judge Ngugi.
The Judge also declined to award them damages saying that there was no basis for an allegations that there rights were violated.
Justice Ngugi noted that the couple was charged on June 29 and were released on bond the following day, after denying the charges.
The couple filed a petition seeking to block their trial before Milimani Chief Magistrate Anti-Corruptuon court.
They wanted Director of Public Prosecution and the KRA prohibited from Prosecuting them over the tax assessment dated April 26, 2017 issued by the taxman.
The couple had also urged the court to quash the charge sheet dated June 30 containing charges against them and declare that by recommending their Prosecution, Ethics and Anti-corruption Commission abused its statutory powers in pursuit of a collateral and extraneous purpose not connected with the criminal justice.
Gikonyo and his wife also sought a declaration that there is no prosecutable case that EACC and DPP can mount against them and their company in relation to the tax assessment or witness statements.
It was their argument that the DPP abdicated his constitutional duty by failing to prevent and avoid the abuse of the legal process and violated the law by prosecuting them.
They told the court that they were charged for allegedly failing to pay tax amounting to Sh38,692,694 and their prosecution was an abuse of the legal process as it contravenes section 80 (1) of the TPA which prohibits Prosecution whenever penalties are imposed on a taxpayer under any tax law.
They further argued that their Prosecution has been instituted for ulterior and collateral motives which are far removed from the legitimate pursuit of criminal justice.
They further added that Haji in a discriminatory manner violated Article 27 of the Constitution and decided to prosecute them notwithstanding the existence of an express statutory provision prohibiting their Prosecution.
According to the couple, the commission has been pursuing them on account of unexplained wealth and assets since 2016 and that over four years have lapsed and the commission is getting frustrated with it loses in the Civil suit in the high Court through the Civil process.
The two further added sometime in 2016 they were summoned to appear before KRA which they appeared and disclosed his financial affairs and also disclosed to KRA the kind of business he was involved and supplied them with financial records.
He added that unknown to them but disclosed two years later by the EACC, KRA tax audit had been taken at EACC’s request and the commission had requested that KRA issue a tax assessment against his company and him.
DPP had opposed the petition arguing that there is no evidence demonstrating that the case complained of was filed in the absence of a proper factual or that may suspect ulterior motive or improper purpose.
Prosecution said based on the investigations carried by the commission, it had established that between 2012 and 2015, they fraudulently and unlawfully failed to remit due and owing to KRA and the DPP had therefore made a decision to charge them with fraudulent failure to pay taxes.
The commission through it forensic Investigator James Kamau said the commission launched investigations into alleged acquisition of assets by Gikonyo and his wife and revealed that he had accumulated assets valued at Sh. 314,750,000 and cumulative cash deposits amounting to Sh. 339,044,707 million from the year 2010 to 2016.
Investigation had also established that the couple had not paid taxes or filed tax returns since 2009 on money received and the tax assessment received from KRA should their company had accumulated tax and penalties amounting to Sh. 38,692,694 million and commission recommded they be charged with fraudulent and failure to pay taxes.
