On 21 November 2018, the High Court barred the Directorate of Criminal Investigations and the Kenya Revenue Authority from arresting, questioning or otherwise pursuing lawyer Tom Ojienda over a tax dispute tied to the years 2009 to 2016.
Justice Chacha Mwita also restrained the two agencies from starting any civil or criminal proceedings against Ojienda over the matter, or from harassing him in connection with the tax claims.
Ojienda had moved to court two weeks earlier seeking protection from arrest, arguing that the tax process was being weaponised against him as the elections for the Judicial Service Commission-Law Society of Kenya representative approached.
In his papers, he accused the respondents of targeting him through what he described as a malicious effort to “get me” and subject him to a flawed criminal process. He said the process was marked by illegality, bad faith and a witch-hunt meant to damage his standing among the public and fellow lawyers.
According to the court documents, KRA served him in September 2016 with a demand for Sh378 million. He said the figure came from “illegal amendments to his tax register and the insertion of fictitious figures” based on clients’ deposits and personal emoluments.
He also challenged an earlier assessment dated June 2016, which had demanded Sh443 million, and a later amended assessment dated 5 September 2016, which sought Sh378 million as the alleged tax due for 2009-16 and 2011-16 respectively.
The court had already stayed any civil or criminal action based on the 5 September 2016 amendment on 5 October, pending the hearing of the application.
In May, Justice George Odunga quashed the assessments dated 7 June and 5 September 2016 and prohibited KRA from acting on them. Although KRA appealed, the matter remains pending, meaning Odunga’s orders still stand.
Ojienda argued that once the assessments were quashed, there was no lawful basis for any action under them. He maintained that KRA could not revive an assessment after the expiry of five years and accused the agency of trying to enforce a process long after that period had lapsed without justification.
He asked the court to bar KRA, the DCI and the Attorney General from commencing any civil or criminal process, arresting him, summoning him, questioning him or otherwise harassing him over any tax issue for 2009-16 that had been the subject of the civil case, or any other tax question for that period pending the outcome of the case.
He also sought a declaration that payment of advocates’ fees is governed by the Advocates Remuneration Order and the dispute-resolution mechanism under the Advocates Act.
