The Petitioners in this matter were charged with offences under the tax laws of Kenya at the Milimani Chief Magistrates Court. Dissatisfied with the decision of the magistrate’s court, they petitioned the Constitutional and Human Rights Division of the High Court. Their contention was that KRA levied charges against the Petitioners without the consent of the Directorate of Public Prosecutions (DPP).
The key issue of contention that the charge sheet instituting the criminal charges emanated from the Directorate of Criminal Investigation (DCI) whereas the Constitution requires all criminal prosecutions to be instituted and undertaken by the originate from the DPP.
Article 157 (6) (a) of the Constitution provides that the DPP shall exercise State powers of prosecution and may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.
Holding
The court held that no court in Kenya shall accept, register and deal with any charge sheets not prepared and signed by law prosecutors. The investigative agencies for instance, KRA, that are mandated with criminal investigation role under any written law, cannot draft, sign and/ or present any charge sheets in any criminal prosecution.
