The High Court sitting in Kakamega on 11th December reversed an order releasing a truck intercepted as it offloaded contraband cigarettes with a tax implication of Ksh26.25 million at a residential house in Kakamega. Justice Alice Bett reversed the order issued by Kakamega Chief Magistrate, Mr Julius Ng’arng’ar.
The truck was intercepted as it was offloading cigarettes at a residential house in Shuvumbe area, Kakamega County, on 15th October 2023, by a multi-agency team comprising officers from the DCIO – Kakamega Central Sub-County and the Kenya Revenue Authority (KRA). The truck had 350 cartons containing 5,000 sticks of Supermatch cigarettes marked ‘For Export’ concealed with wheat ban.
The driver of the truck, Mr Shadrack Kogo, failed to provide documents showing the origin of the consignment and/or payment of duties. The truck and consignment were seized by KRA. Subsequently, Mr Kogo was charged in March with conveying uncustomed goods contrary to Section 199 (b) of the East Africa Community Customs Management Act. He denied the charges and was granted a bond of Ksh500,000 with an order made to have the truck detained as an exhibit.
However, the truck owner, Mr Geoffrey Cheruiyot BorBor, applied to have the truck released saying he was ready to avail it to court when needed. KRA and the Office of the Director of Prosecution (ODPP) promptly moved to the High Court seeking to set aside the order as the truck was used to facilitate commission of the offence leading to its seizure. KRA submitted that the goods, including the truck, were liable to forfeiture under the law and that the commissioner had statutory mandate to detain them until the determination of the prosecution case.
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The KRA further submitted that although the truck owner has a right to be presumed innocent until proven guilty, the state was obligated to ensure preservation and proper chain of custody of such evidence. In her judgement, Justice Bett ruled that the trial court erred in releasing the truck as it was an exhibit and could only be released upon its production.
In the recent past, there has been an increase in cases of tax evaders using commercial motor vehicles hired from unsuspecting owners to conduct malpractices that include smuggling of goods into the country, transportation of goods affixed with counterfeit excise stamps and dealing in restricted/prohibited commodities that have not met conditions imposed by the law.
In this regard, transporters, drivers and turn boys are urged to exercise due diligence to ensure that the goods in transportation are accompanied with delivery notes clearly indicating description of the goods, details of the owner of goods, details of persons to whom the goods are to be delivered and relevant valid customs documentations.
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