Giche Ltd & 2 others v Director of Public Prosecution & 2 others [2020] KEHC 1411 (KLR)
- Court
- High Court of Kenya
- Case number
- 1411
- Citation
- [2020] KEHC 1411 (KLR)
The court will determine whether the arrest and prosecution of the petitioners violate section 80(1) of the TPA.
Facts
The petitioners are directors of a limited liability company and were charged with fraudulent failure to pay taxes. EACC recommended their arrest and prosecution, and they were arrested and charged in June 2020. The tax assessment from KRA was for Kshs 38,692,694.
Issues
- Whether the arrest and prosecution of the petitioners violates section 80(1) of the TPA
- Whether section 80 of the TPA prohibits prosecution of a defaulter where penalties have been levied
- Whether EACC was motivated by an ulterior motive in recommending the arrest and prosecution of the petitioners
- Whether the DPP’s decision to commence criminal proceedings against the petitioners was made in excess of his mandate
- Whether the petitioners have demonstrated violation of their constitutional rights by the respondents
- Whether the petitioners are entitled to the reliefs sought in the petition
Reasoning
The court will consider the parties' submissions on whether the TPA prohibits the prosecution of a defaulter where penalties have been levied, and will address the petitioners' claim that their arrest and prosecution are unlawful due to the provisions of section 80(1) of the TPA.
Outcome
The court will render a determination on whether the arrest and prosecution of the petitioners violate section 80(1) of the TPA.
Orders
- A declaration that the Director of Public Prosecutions abdicated his constitutional duty by failing to prevent and avoid the abuse of the legal process and violated the provisions of Article 157 (11) of the Constitution by prosecuting the Petitioners in Anti-Corruption Case No. 13 of 2020 – Republic v Giche Limited & 2 others.
- A declaration that the 1st and 2nd Respondents violated the provisions of Section 80 (1) of the Tax Procedures Act, 2015 by instituting the criminal charges contained in the charge sheet dated 30 June 2020.
Remedies
- A declaration that the respondents violated the provisions of section 80(1) of the TPA in instituting the criminal proceedings against the petitioners.
Authorities cited
Legislation (2)
- Tax Procedures Act, 2015
- Anti-Corruption and Economic Crimes Act, 2003
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