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“What happens if one of the many cases concludes and there are acquittals while funds have already been seized?” he posed.
Africa Spirits Limited has filed a complaint at a Nairobi court that it faces a grave miscarriage of justice in the face of multiple cases filed in court and numerous orders sought by the Director of Public Prosecutions.
The firm’s lawyers told Justice Luka Kimaru on Tuesday that the DPP had embarked on what they described as ‘forum shopping spree’ in a bid to secure orders against the firm and in the process, including companies that are not parties to criminal cases before court. Lawyer Cecil Miller, who was leading advocates for Africa Spirits Limited (ASL), told the court that an order to freeze funds in accounts held by the company and nine others associated with businessman Humphrey Kariuki was irregularly obtained before a Kiambu court after a court in Nairobi refused to issue the orders sought.
Even though the court in Kiambu did not issue an order to freeze any of the bank accounts, the order that was served on two banks without the knowledge of the firms involved went ahead to order a freeze.The order applied for in court was to have access and search the bank accounts and not to freeze them.The order served brought in several companies that are not accused persons in any of the cases before court.
The DPP, the lawyers said, went ahead to serve the freeze order on banks bringing lives of thousands of employees to a standstill (who work for companies that are not parties to the cases in court)
“The DPP should be deprived of any undue advantage against other parties using orders obtained ex -parte. The aggrieved parties were condemned unheard and that condemnation was assisted by an irregular non-existent order,” Miller argued.
He told the court that the situation was one of double or even triple jeopardy.
“What happens if one of the many cases concludes and there are acquittals while funds have already been seized?” he posed.
Miller pointed out that the criminal matters before the courts were all reported on the same day, January 31, 2019 and all the charge sheets bear the same Occurrence Book (OB) No.
One of the cases was taken to court on February 1, 2019 in Thika while others were lodged on August 9, 2019 in Nairobi despite having the same OB Number.
“The multiple cases are an abuse of the court process because there needs to be finality in a matter before court,” Miller said.
He further pointed out to the court that for the first time, shareholders have been charged in court over tax issues of a company. “The file in Kiambu needs to be called for, so that the judge can see the mischief in the extraction of the order that was served on banks,” he urged.
He added that during the period that ASL is being accused of failing to pay taxes, they were issued with a Tax Compliance Certificate. The same compliance was issued to WOW Beverages Limited, which is an interested party in the case before Justice Kimaru.
Miller told the court that no notice was issued to Africa Spirits Limited (ASL) to appear before the Commissioner of Taxes as required by the Tax Procedure Act of 2015 and the DPP can’t demonstrate that this was done. The Act sets out procedures for investigation, compliance and audit of tax issues. He wondered why the DPP rushed to court seeking multiple orders, yet his office told the court that investigations are still ongoing.
He said KRA should have explored Alternative Dispute Resolution mechanisms instead of rushing to court since suing is a last option under the Under the Tax Procedures Act of 2015.
The matter was adjourned and is back in court on Thursday at 11.30am for the DPP and KRA to respond.
This article was published by CAPITAL FM on September 24, 2019
