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Court of AppealDismissedCivil Appeal No. 175 of 2016· [2018] KECA 307 (KLR)

Interactive Gaming & Lotteries Limited v Kenya Revenue Authority [2018] KECA 307 (KLR)

Court of Appeal
28 September 2018
4,465 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal confirmed that Kenyan taxpayers must use statutory objection and appeal procedures before going to court, and interpleader wins don't block KRA tax assessments.

What this practically means

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Executive summary

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The appellant, Interactive Gaming and Lotteries Limited, ran a public lottery whose proceeds were held by Safaricom. Interpleader proceedings in HCCC No. 115 of 2011, decided by Odunga, J. on 30th April 2014, declared the appellant entitled to Kshs. 139,132,851.94. Thereafter KRA issued assessment notices for Value Added Tax, Withholding Tax and Income Tax dated 17th June 2014 and transferred the appellant's tax affairs from Nairobi to Meru. The appellant sought leave for judicial review to quash and prohibit those decisions, but Odunga, J. on 25th May 2016 struck out the motion on the ground that the tax statutes provided alternative remedies. On appeal, counsel collapsed eight grounds into two issues: whether an alternative remedy existed, and the effect of the interpleader judgment. The Court of Appeal held that interpleader proceedings determine only ownership of stakeholder-held funds and could not have determined or barred KRA's tax claim; the issue of taxes was never before any court, and estoppel cannot operate against a statute. On the first issue, the Court held that Sections 84 of the Income Tax Act and 50-52 of the Value Added Tax Act provide elaborate objection and appeal procedures that the appellant should have exhausted, judicial review being concerned with the decision-making process, not the merits. Applying Pili Management Consultants, Municipal Council of Mombasa, and the Wade/Boundary Commission reasonableness doctrine, the Court agreed with the High Court that the judicial review application was incompetent, dismissed the appeal with costs to KRA, and regretted administrative delay in delivering the judgment, which was issued under rule 32(3) of the Court of Appeal Rules, G.B.M. Kariuki, J.A. having retired.

Key legal issues

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01

Availability of an alternative statutory remedy barring judicial review

Holding

The objection and appeal procedures in the Income Tax Act and the Value Added Tax Act were available and suitable; judicial review was incompetent.

Reasoning

Sections 84 of the Income Tax Act and 50-52 of the Value Added Tax Act provide elaborate procedures obliging a taxpayer disputing an assessment to object to the Commissioner first, with appeal to the Tax Appeals Tribunal and thereafter the High Court. Judicial review is concerned with the decision-making process, not the merits of the decision. Where a statute donates power to a body, that body should carry out its mandate without court interference. The appellant bypassed these mechanisms improperly.

p. 5
02

Effect of the interpleader judgment in HCCC No. 115 of 2011

Holding

The interpleader judgment determined only ownership of the funds held by Safaricom; it did not determine and could not bar KRA's claim for taxes.

Reasoning

Interpleader proceedings are brought by a stakeholder with no claim to funds to determine who among competing claimants owns them. Tax liability was never an issue in those proceedings, and a court in interpleader could not determine taxes due to KRA. KRA's on-record position in that suit that it made no claim against the appellant did not estop it, since estoppel cannot operate against a statute.

p. 4
03

Scope of judicial review

Holding

Judicial review is concerned with the decision-making process, not the merits of the decision; the court cannot determine the correctness of a tax assessment in review proceedings.

Reasoning

Relying on Pili Management Consultants and Municipal Council of Mombasa, and on Professor Wade's doctrine of reasonableness, the Court endorsed the principle that a court in judicial review examines the process by which a public body reached its decision and must not usurp the discretion conferred by Parliament on the deciding authority, so long as the decision falls within the bounds of legal reasonableness.

p. 4

Legal principles established

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  • Where a statute provides an elaborate alternative remedy, a party must pursue that remedy rather than invoke the judicial review jurisdiction of the court.
  • A judgment in interpleader proceedings determines only ownership of money or property held by a stakeholder and cannot determine or bar tax liability; it does not preclude the revenue authority from later assessing taxes.
  • Estoppel cannot operate against a statute.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Income Tax ActSection 73(1)
  • Income Tax ActSection 73(3)
  • Income Tax ActSection 35
  • Income Tax Act (Cap 470, Laws of Kenya)Section 84
  • Value Added Tax Act, No. 35 of 2013Section 50
  • Value Added Tax Act, No. 35 of 2013Section 51
  • Value Added Tax Act, No. 35 of 2013Section 52
  • Value Added Tax Act (Cap 476, Laws of Kenya)repealed by Act No. 35 of 2013
  • Tax Appeals Tribunal Act, 2013referenced in Section 52 VAT Act
  • Civil Procedure ActOrder 34 (interpleader)
  • Fair Administrative Actions Actreferenced as relied on in passing by the Superior Court
  • Court of Appeal RulesRule 32(3)

Cases cited (4)

  • Pili Management Consultants Limited v Commissioner of Income Tax Kenya Revenue Authority
    [2010] eKLR
  • Municipal Council of Mombasa v Republic and Another
    [2002] eKLR
  • Boundary Commission
    [1983] 2 WLR 458
  • Niazons K. Limited v China Road and Bridge Corporation (Kenya)
    [2000] eKLR
On appeal from
High Court at Nairobi
Judicial Review Misc. Appl. No. 251 of 2014
Jurisdiction invoked
First appeal from the High Court in judicial review proceedings under the Court of Appeal's appellate jurisdiction (judgment issued under rule 32(3) of the Court of Appeal Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Interactive Gaming & Lotteries Limited v Kenya Revenue Authority [2018] KECA 307 (KLR)", Case Analysis (2018). Civil Appeal No. 175 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/307/eng@2018-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.