Two directors of a firm facing tax evasion charges have failed to convince the High Court to revive a case that was dismissed in March, challenging their prosecution.
Parmar Vinubhai Somabhai and Sangitabhen Vinubhai Parmar, who are directors of Harsidhi Enterprises Ltd had wanted the court to allow them to challenge their intended prosecution over the failure to pay tax amounting to Sh520 million.
The directors were presented before a magistrate court in June last year to face charges of deliberately failing to pay taxes.
They, however, moved to the High Court in March this year and were allowed to challenge their prosecution.
But after obtaining the orders stopping their prosecution, the two failed to file the main case within 21 days as required and Director of Public Prosecutions Noordin Haji together with Kenya Revenue Authority (KRA) applied for the striking out of the case.
Justice Alfred Mabeya struck out the case but they went back to court to revive the case. The judge rejected the application saying allowing it would be acting in futility because the orders had expired.
“The initial leave having lapsed and the application been struck out, nothing prevented the applicant from bringing a fresh application for leave upon which a fresh motion could be predicated upon,” said the judge.
Evidence presented by the KRA assessed its tax obligations and discovered that the firm defaulted in paying income tax among other charges between January 1 and December 31, 2015.
The firm lodged an appeal before the Commissioner of Domestic taxes but it was rejected and after failing to pay, the KRA pressed for criminal charges.
Before the High Court, the directors pleaded with Justice Mabeya to resuscitate the case saying the court has the powers.
Mr Somabhai told the court that the delay in filing the main case was caused by his lawyers, who erroneously applied for an extension before a different court.
KRA opposed the application saying the explanation for the delay was not satisfactory and the directors have the habit of abandoning cases midway, after obtaining orders and stopping their prosecution.
The court further heard that the extension of time is not a right of a party but rather an equitable remedy that is only available to a deserving party at the discretion of the court.
“In the premises, I find the application to be without merit and the same is dismissed with costs,” said the judge.
The two traders have argued that they should not have been charged before the KRA exhausted the procedures stipulated under the Tax Procedure Act. BY DAILY NATION