High Court Prohibits The Arrest And Prosecution SC Tom Ojienda Over Disputed Tax Demands

by Mahakamani News
Senior counsel Tom Ojienda

Senior counsel Tom Ojienda has won yet another round of his legal battle with the Kenya Revenue Authority (KRA) after the High Court  prohibited the taxman and the Director of Criminal Investigations (DCI) from arresting and prosecuting him over Sh822 million unpaid tax.

Justice Chacha Mwita issued the temporary orders pending the hearing and determination of Ojienda’s petition challenging the tax demands.

“The order is hereby granted prohibiting the respondents, their officials, agents or anybody working under them from commencing any proceedings, arresting, summoning questioning, threatening or in any way harassing the petitioner with respect to any tax issues for the period between 2009 and 2016,” ruled the judge.

Ojienda, also a member of the Judicial Service Commission (JSC) claims KRA and DCI’s bid to arrest and prosecute him is illegal and in bad faith and a violation of his rights. He claims the State agencies are being used to fight him politically over his interest in the post of Law Society of Kenya representative in the JSC.

“It is apparent the respondents are out on a malicious excursion to ensure I’m subjected to a flawed criminal process…with the sole intention of tainting my reputation in the eyes of the public and lawyers,” says the lawyer.

Ojienda claims that despite relentless two-year legal tussle, he continues to pay taxes and has no other dispute with KRA.

“I have knowledge the KRA is planning as a matter of urgency to arbitrarily arrest and charge me anytime from now  over the illegal taxes for the periods of 2009-2016,” he says in court papers.

KRA had written to Ojienda on June 7, 2016, directing the lawyer to remit Sh444 million as total tax due between 2009 and 2016.

Another letter dated September 5, 2016, referred to as amended assessment, demanded a further Sh379 million tax arrears for the period between 2011 and 2016.

But Ojienda says the decision to arrest and charge him over the alleged tax arrears was on May 18 this year quashed by Justice George Odunga and the matter is still pending at the court of appeal after the respondents appealed.

KRA wants the lawyer to remit unpaid tax from his income in legal fees—estimated at Sh1.1 billion—received from Mumias Sugar Company and the Nairobi County government.

Ojienda further claims the said the illegal assessment has subjected him to trauma and unnecessary psychological torture and anxiety.

“It has affected my work, despite the important nature of my current duties to the nation”. Said ojienda.

Prof Ojienda said that the Barclays Bank is his personal account where he receives his salaries, emoluments and other allowances from his employment.

“All my salaries and allowances earned through my employment as a lecturer at Moi University ,Member of National Environment Tribunal, Commissioner of the Truth Justice and Reconciliation Commission and Commissioner of the Judicial Service Commission are paid into this account wherein income tax is automatically deducted from payable amount before it is paid to me”. Said Prof Ojienda.

He further said the money received and kept in to the Standard Chartered and Barclays Bank accounts was not entitled to him or any of his partners , neither present nor past . The said money received in to these accounts was not in payment of or on account of the agreed fee in any matter that the firm handled. 

Ojienda further claimed it is was unfair and illegal for KRA to assess for taxation for his account to which he paid as salaries and allowances from employment.

He said the account at Barclays Bank at Hurlingham is the office account to which over the year he has been submitting his income tax returns to KRA in accordance with KRA Act 2015 in respect of partnership to the said law firms.

According to the court documents Ojienda claims that on August 2,2018 he wrote to the DCI informing him of all the over 250 matters that his firm was handing of Nairobi county but he has never received a responce on the same.

Ojienda further claims KRA summed up all monies ever received in to the accounts maintained by him for the said period including the unpaid bills, proceeds from personal accounts.

“For the Mumias Company limited for instance, KRA computed the amount paid to me using bills raised by the applicant most of which are unpaid and came up with a figure of Sh 221,983,667,00 as total sum paid to me”. Said Ojienda

He claims that the decision to arrest him and charge him over the same alleged tax arrears was on May 18 this year quashed by Justice George Odunga and the same matter is still pending at the court of appeal after the respondents appealed the same.

While overruling KRA, Justice George Odunga in his ruling said the authority had taken the wrong end of the stick in the matter following the fallout between the parties over documentation.

The judge noted that KRA, after September 5, 2016, having issued its objection decision, was no longer looking for documents to assess Ojienda’s financial tracks but was conducting investigations and seeking evidence of tax offences as provided for in law.

The Kenya Revenue Authority had claimed that the lawyer has evaded tax on his income as legal fees estimated at Sh1.1 billion received from Mumias Sugar Company and the Nairobi County Government.

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