Two directors of a company have moved to court seeking a declaration that their threatened arrest, harassment and intimidation in relation to alleged counterfeit edible oil worth Sh100 million seized in Mombasa is unconstitutional and violates their rights.
Seahorse Energy Ltd and its directors Peter Gichuhi and John Wanga say the activities happened in a portion of land subleased to another person.
They want the court to declare that they ought not to be held criminally liable for unlawful acts of their subtenants, carried out in breach of lease agreements.
In their petition at the High Court in Mombasa, they have sued Commissioner General-Kenya Revenue Authority (KRA), Director of Criminal Investigations (DCI), Director of Public Prosecutions (DPP), Anti-Counterfeit Authority (ACA) and the Attorney General.
The petitioners say that Seahorse Energy Ltd entered into a lease agreement with Kenya Meat Commission (KMC) over a parcel of land in Mombasa.
The agreement permitted the use of the premises for storage of trucks, movement of trucks dealing in fuel transportation and disposal of waste oil and sludge.
They also say that in the course of its tenancy and in good faith, Seahorse Energy Ltd entered into various subleases of portions of land and each of them specified permitted purposes with clear prohibitions against any other use.
The petitioners say that it came to their attention that Ms Mary Wangari, to whom Seahorse Energy Ltd subleased a portion of land, has been under investigation by the DCI and ACA for allegedly engaging in handling of counterfeits which have been carried out on the portion of land leased to her.
“The petitioners were never privy to nor did it authorize or condone such activities. The petitioners genuinely believed that the subtenants were using the premises in line with their respective leases,” part of the suit documents state.
They say that on September 9, they received a notice of offence from KRA Domestic Taxes Department alleging failure to issue proper tax invoices contrary to Section 42 of the VAT Act. Pursuant thereto, the petitioners say 200 branded 20-litre jerricans filled with assorted edible oil brands, 60 drums of 200 litres each filled with edible oil and 500 empty 20 litre jericcans have been seized from the premises.
“The directors of the petitioner have also been summoned to appear in person before the Commissioner of Investigation and Enforcement,” part of the case documents state.
They argue that the respondents have mounted investigations that target not only the subtenants but themselves who are now being pursued and threatened with arrest and possible charges.
“The petitioners contend that the threatened arrests, harassment, intimidation and contemplated decision to charge Seahorse Energy Ltd and its directors are unlawful, baseless and amount to a violation of the fundamental rights,” the petition states in part.
The petitioners argue that they are being unfairly singled out for criminal liability for actions independently undertaken by third parties in breach of express lease restrictions.
“Subjecting the petitioner’s directors to harassment and threats of prosecution in the absence of evidence directly linking them to the alleged offences amounts to degradation of their dignity,” part of the petition states.
They also seek a permanent injunction restraining the respondents, their agents or servants from arresting or interfering with the liberty of the directors in relation to the alleged counterfeit activities of Ms Wangari whom they have named as an interested party in the case.
In addition, they want an order of general damages for the harassment, intimidation and reputational injury occasioned to the company’s directors.
In the meantime, the petitioners have asked for conservatory orders to restrain the respondents from arresting, charging or detaining them in relation to alleged counterfeit activities conducted on the portion of land. The case will be mentioned on November 4.
