The High court sitting in Kisumu has declined to issue a permanent order stopping the taxman and DPP from recommending the arrest and prosecution of Businessman Jared Peter Odoyo Kwaga in connection to tax matters.
Justice Fred Ochieng said the recommendation by the Kenya Revenue Authority (KRA), to have the DPP institute criminal charges against Kwaga is not unconstitutional.
He said Kwaga has not demonstrated that KRA was “pressing” for his arrest and prosecution.
“But even if KRA were to “press”, the DPP cannot be compelled by KRA to act.The DPP is under a legal obligation to act fairly and independently,” said the Judge.
Kwaga operates Microsoft limited, should media, Edusoft limited and Macropharm pharmaceutical limited.
In January 2021, he received a demand notice from the Kenya Revenue Authority indicating that he was in arrears on both his VAT and Income Tax Returns.
Kwaga subsequently lodged an appeal at the Tax Tribunal.
He said the tribunal directed that the matter should go for Alternative Dispute Resolution (ADR).
Upon receipt of the demand notices, the petitioner raised an objection and lodged a complaint with the Tax Appeal Tribunal.
He told the court that despite the pendency of the proceedings before the Tribunal, KRA still invited the DPP to prefer criminal charges against him.
“In the light of that action, the petitioner became apprehensive that he could be arrested and charged with trumped up charges, in order to arm-twist him to withdraw the complaint at the Tax Appeals Tribunal,” noted the Judge.
But Ochieng said the existence of an ongoing case before the Tax Appels Tribunal is not, in itself, a bar to the institution of criminal proceedings against Kwaga.
“In the event that the Director of Public Prosecution is satisfied that there is sufficient material evidence which can sustain the prosecution ofKwaga, it would be an affront to the justice system to restrain him from undertaking the very task that the law bestows upon him.”
“I, therefore, decline to issue a permanent injunction to restrain the respondents from;… recommending the arrest and prosecution or charging the petitioner in a court of law in connection with any tax-related matter,” said Ochieng.
The Judge explained that the court is not aware whether or not Kwaga had committed any offence of a criminal nature, in relation to his tax affairs.
“I cannot give a blanket amnesty to the petitioner against prosecution; in connection with any tax-related matter. Therefore, it is definitely premature and speculative for the petitioner to conclude that he is likely to be arrested and charged,” he ruled.
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