DPP to appeal against tycoon's acquittal in Sh7.4m case

The Director of Public Prosecutions (DPP) Nordin Haji will appeal against a decision to free billionaire businessman Humphrey Kariuki.

Mr Kariuki was acquitted on Tuesday after the prosecution failed to provide evidence in a Sh7.4million ethanol case.

The businessman is however not yet out of the woods with two other cases still pending before Milimani Chief Magistrates Francis Andayi and Ms Martha Mutuku.

In one of the cases, Mr Kariuki is facing charges of failing to remit taxes amounting to Sh41billion in revenue from the sales of alcohol.

In the other case, he has been charged with being in possession of uncustomed goods and fake custom receipts.

Mr Kariuki and six co-accused were acquitted by Senior Principal Magistrate Kennedy Cheruiyot after the DPP failed to provide evidence despite the case pending in court for 16 months.

The accused persons were freed after the DPP failed to avail evidence in the Sh7.4m uncustomed ethanol case recovered at Kariuki's alcohol factories in Thika town – Africa Spirits Limited (ASL) and Wow Bevareges Limited (WBL).

“I find and hold that whereas the DPP has authority to prosecute criminal cases and to determine how such cases are conducted, the authority must be exercised within existing rules of procedure and practice," the magistrate said in his ruling.

"I therefore hold that it is against the public interest and interest of justice to adjourn this case as sought by the DPP," he added.

He said once a case is taken to court, the rules of the game change and that the application by the DPP to stay indefinitely the proceedings pending consolidation is unreasonable and unjustified.

But on Wednesday, while responding to the latest development, the DPP, on his Twitter handle, faulted the media for misrepresenting the matter, claiming it was misunderstood.

"We will challenge the acquittal at the High Court. We have written to the Executive Officer to furnish us with the court proceedings to proceed to the superior court to have the judgment reversed,” Deputy Director of Public Prosecutions, Mr Alexander Muteti told the Nation.

This is the latest high profile cases the DPP has lost for failing to adduce evidence in court.

The other accused persons who were acquitted alongside Mr Kariuki are ASL and WBL directors Mr Peter Njenga, Mr Robert Thinji Mureithi, Mr Eric Mulwa Nzomba and Mr Kefa Gakure.

While delivering his ruling, Senior Principal Magistrate Cheruiyot, also slammed the DPP for failing in his duty under the law to avail evidence expeditiously.

Delayed case

The magistrate said the DPP failed to observe Article 50 (2) (e) of the Constitution which calls for fair trial through an expeditious disposal of a criminal case.

Mr Cheruiyot concurred with defence lawyers Senior Counsel Kioko Kilikumi, Senior Counsel Philip Murgor and Mr Cecil Miller for Mr Kariuki that the case has been pending in court for the last 16 months with no signs of it ever progressing in the near future.

“The delay in leading evidence in this case amounts to violating the fundamental and constitutional rights of the accused who have religiously attended this trial for 16 months,” said Mr Cheruiyot.

Mr Kilukumi, Mr Murgor and Mr Miller said the delay in disposing off the case amounts to a waste of precious time for the judiciary, the defence lawyers and accused who are supposed to be engaged in meaningful economic engagements.

The magistrate said the impending amendment of charges is unnecessary and inconsequential as it would amount to denying persons their right to have the trial begun and concluded without unreasonable delay as provided in article 50(2)(e) of the constitution.

“In the circumstance l find no reason that makes it proper, appropriate or expedient to adjourn the hearing of this case,” he said.

All the accused persons had denied being in possession of uncustomed goods valued at Sh7,402,958 inside a trailer truck without payment of the relevant duty.

The have been charged with committing the offence on January 31, 2019 at ASL and WBL within Thika Township Kiambu County.

The accused also faced a second count of conspiracy to defraud the Government of Kenya revenue of Sh5,704,858 by failing to pay relevant duty for 80 drums of ethanol.