Trader’s case whose verdict soured DPP Haji, DCI Kinoti ties
Businessman Humphrey Kariuki who challenged his prosecution over Sh17 billion tax evasion claims. Little did he know the outcome of the case would leave two state agencies, the ODPP and DCI, at loggerheads.
When businessman Humphrey Kariuki challenged his prosecution over Sh17 billion tax evasion claims, little did he know the outcome of the case would leave two state agencies at loggerheads.
A judgment delivered last week by High Court Judge Anthony Mrima appears to have rekindled a supremacy battle between the Director of Public Prosecutions Noordin Haji and the Director of Criminal Investigations George Kinoti that began three years ago.
In the judgment dated May 23, 2022, Justice Mrima said that no court in Kenya would forthwith accept, register and in any manner whatsoever deal with any charge sheets not prepared and signed by the lawful prosecutors.
The verdict effectively barred the police from drafting charge sheets and held that only the Office of Director of Public Prosecutions (ODPP) could do so.
“For avoidance of doubt, given the constitutional and legislative mandates in carrying out investigations, the National Police Service, the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, the Anti-Counterfeit Agency or any other government entity mandated with criminal investigation role under any written law, cannot draft, sign and/or present any charge sheets in any criminal prosecution,” stated Justice Mrima.
Prosecution of criminal offences
The court declared that prosecution of criminal offences in Kenya must be undertaken by either the DPP or such other persons exercising delegated powers of the DPP under Article 157(9) of the Constitution.
Justice Mrima, however, said the declarations would not apply to previously instituted criminal proceedings.
The court also quashed and prohibited the prosecution of the businessman and his colleagues.
Justice Mrima said the prosecution of Mr Kariuki was unlawful as it was being handled by prosecutors from the Kenya Revenue Authority (KRA) instead of the Office of Director of Public Prosecutions.
Further, the decision to charge Mr Kariuki was made by the National Police Service, which was the investigator of the alleged tax crimes, instead of the DPP.
Mr Kariuki faced 11 criminal charges related to tax evasion. Also facing the charges alongside the businessman were Mr Geoffrey Kaaria Kinoti, Mr Simon Maundu, Mr Kepha Githu Gakure, Mr Robert Murithi, Mr Peter Njenga Kuria, Africa Spirits Limited and Wow Beverages Limited. They were arraigned in 2019.
DPP in a quandary
A few days after the judgment, Mr Kinoti directed his officers not to record statements or take fingerprints from suspects, leaving the DPP in a quandary.
In a signal to his officers, Mr Kinoti has further directed that since the power to draft a charge sheet or charge suspects has been taken away from the police by the High Court, there is “no statement under inquiry for one can only inquire into a charge”.
“No charge and caution for whoever makes the charge is (the) one to caution,” he said in the signal signed on his behalf by Mr John Gachomo.
The directive further states that “suspects’ fingerprints shall not be taken, for the purpose of fingerprints is to identify the suspect for records by the principal criminal registrar”.
Mr Kinoti says files being submitted to the DPP will henceforth not be accompanied by a covering letter to avoid drawing up a charge, which Justice Anthony Mrima said was unconstitutional.
“Our work and mandate has been reduced to only forwarding our investigations to the Director of Public Prosecution,” he said.
According to Mr Kinoti, Section 89 (4) and (5) of the Criminal Procedure Code mandates only a police officer or a magistrate to draw, sign and present a charge sheet.
Anti-terrorism guidelines
The directive came in the wake of Mr Kinoti accusing Mr Haji Haji of attempting to control the police in a case where the DCI has distanced itself from the anti-terrorism guidelines published by the DPP.
But Mr Haji has said Justice Mrima’s judgment only reinforced previous decisions of other courts and asked the security agencies, including the DCI, to perform their roles as per the provisions of the Constitution.
He also explained that in Mr Kariuki’s petition, his office was listed among the respondents, who included the DCI.
“The DPP did not seek either the orders granted by the court or any other orders. Specifically, the ODPP did not seek orders to utilise its charge sheet or any other charge sheet in filing criminal charges,” said Mr Haji.
“Additionally, the court did not make orders for any specific form of a charge sheet to be used while filing criminal charges in court. Neither did the court direct that the ODPP usurp the powers of the DCI or any other investigating agency,” he added.
Free to appeal
He said any person or entity dissatisfied with Justice Mrima’s judgment are free to appeal the decision.
Mr Haji stated that his office would always collaborate and consult with the Office of the Inspector General of Police before undertaking any measures which might have far-reaching implications on the administration of justice.
Both Mr Kinoti and Mr Haji worked seamlessly at the beginning of their appointments in January and March 2018.
But their differences began after Mr Haji launched a policy document described as ‘Decision to Charge, 2019’ and automated the case management system.
Reshaping ODPP
During the launch of the document on July 28, 2020, the DPP said it was aimed at “…reshaping ODPP to be Kenya's 21st Century prosecution service you deserve”.
The policy drove a wedge between Mr Haji and Mr Kinoti as it denied the police service the authority of making decisions on whether a criminal suspect should be arraigned or not. The power shifted to state prosecutors, who henceforth became the final decision makers on whether there is enough evidence to sustain a case in court.
“The traditional approach to litigation must change. We must proactively take up the challenge to modernise our criminal justice system so that it is responsive to the needs of the community and meets international best practices,” said the ODPP.
The launch was followed by a series of drama in and outside court. For instance, former Kenya Ports Authority boss Daniel Manduku was released by a court as he had been arraigned by the police over alleged graft. The ODPP said it was not aware of the charges and that it had not received any file relating to the case.
