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Court of AppealDismissedCivil Appeal (consolidated appeals from High Court Const. Petition Nos. 353 of 2017 and 505 of 2017)

Pevans East Africa Ltd & another v Chairman, Betting Control & Licensing Board & 7 others (Civil Appeal 11 of 2018) [2018] KECA 332 (KLR)

Court of Appeal of Kenya
4 May 2018
9,518 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld the 35% tax on betting firms, confirming that tax rates are Parliament's call and courts will not interfere absent clear unconstitutionality.

What this practically means

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Executive summary

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This Court of Appeal judgment (Waki, M'inoti and Murgor, JJA) dismissed the appeal by Pevans East Africa Limited and Bradley Limited against Mativo J.'s dismissal of their consolidated constitutional petitions challenging the Finance Act, 2017, which imposed a uniform 35% tax on gross turnover in the betting, gaming, lotteries and prize competition industry. The Court affirmed the High Court on all four grounds. First, the Finance Act was a Money Bill under Article 114 whose pith and substance was taxation, a national government function; it did not concern county governments, the Senate never objected under Article 110(3), and its enactment required no Senate participation. Second, Article 115 is self-contained and did not require a Bill returned by the President to be committed to a departmental committee; the Assembly was free to accept the President's reservations, which was not usurpation, and section 59B was duly considered. Third, the Bill had been adequately subjected to public participation before passage, and no further participation was required on the narrow issue of the tax rate embedded in the President's memorandum. Fourth, tax rates are a policy matter for the National Assembly; absent perversity or manifest irrationality the courts will not interfere, and no unfairness or discrimination was established. Finally, the Court affirmed that the non-disclosure that a sister company had unsuccessfully sought conservatory orders in a prior petition was material and deliberate, amounting to abuse of process. The appeal was dismissed with costs to the respondents. This judgment binds subordinate courts and the High Court on the standards for Bills concerning counties, presidential reservations, public participation in amendments, and full and frank disclosure in ex parte applications.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Finance Act, 2017 was null and void for lack of involvement of the Senate in its enactment, i.e. whether it was a Bill concerning county governments
  2. 2.Whether the National Assembly violated the Constitution and prescribed parliamentary procedure in enacting the Finance Act, 2017 after the President referred the Bill back with reservations, including the validity of section 59B of the BLG Act
  3. 3.Whether the Finance Act, 2017 was vitiated by lack of further public participation on the President's reservations
  4. 4.Whether the 35% uniform tax on gross turnover was unfair, punitive, discriminatory and in violation of Article 201(b) of the Constitution
  5. 5.Whether the learned judge erred in holding that the appellants' petitions were an abuse of the process of the court

Key legal issues

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01

Whether the Finance Act, 2017 was a Bill concerning county governments requiring Senate participation

Holding

The Act was a Money Bill within Article 114 whose true pith and substance was taxation, a national government function; the Senate had no role in its enactment.

Reasoning

The Court applied the Supreme Court's guidance that matters concerning counties must be determined cautiously and case by case. The Act's long title, memorandum of objects, and express statement confirmed it did not concern counties. The Senate never objected, and by Article 110(3) disputes on whether a Bill concerns counties are for the Speakers. Applying the pith and substance test, the Act's primary purpose was taxation, a national government function, so the National Assembly alone had legislative competence.

p. 10
02

Whether the National Assembly breached procedure in considering the President's memorandum

Holding

No breach: Article 115 is self-contained and does not require a returned Bill to go to a departmental committee; the Assembly was free to accept or reject the President's reservations.

Reasoning

Article 114(2), relied on by the appellants, speaks to motions and not to Bills returned under Article 115. The Standing Orders likewise require the Assembly itself to consider presidential reservations. Accepting the President's views was one of the lawful options open to the Assembly and is not evidence of usurpation. The Assembly's Official Report showed clause 29/section 59B was in fact considered and approved after correction of a typographical omission.

p. 14
03

Whether further public participation was required on the President's reservations

Holding

No; the Bill had been adequately subjected to public participation before passage, and amendments need not undergo fresh participation if within the parameters already consulted upon.

Reasoning

The Court held that requiring fresh participation for every amendment would halt the legislative process and undermine Parliament's constitutional mandate. It endorsed the High Court's reasoning in the Institute for Social Accountability case and the Speaker's ruling that Article 115 procedures are self-contained and do not contemplate re-running the entire enactment process for presidential reservations.

p. 13
04

Whether the 35% tax on gross turnover was unfair, punitive or discriminatory contrary to Article 201(b)

Holding

The rate of taxation is a policy matter for the National Assembly; absent perversity, irrationality or constitutional violation, the courts will not interfere.

Reasoning

The Court emphasized institutional comity and the need to give constitutional organs leeway in their mandates. The policy rationale of discouraging gambling among the youth was legitimate rather than arbitrary. Taxes need not be similar to be rational; turnover-based taxation was not unique to the appellants, and no unfairness or discrimination as understood in law was disclosed.

p. 15
05

Whether the petitions were an abuse of the court process

Holding

The non-disclosure that a sister company had unsuccessfully sought conservatory orders in a prior petition was material, deliberate and constituted abuse of process.

Reasoning

The two appellants shared directors and challenged the same provisions of the Finance Act. The first appellant's ex parte application for conservatory orders was refused by Mwita J.; the second appellant then obtained such orders from Mativo J. without disclosing the prior refusal. Citing Brink's Mat and R v Kensington Income Tax Commissioner, the Court affirmed that ex parte applicants must make full and frank disclosure, failing which they forfeit any advantage obtained.

p. 16

Legal principles established

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  • A Bill qualifies as one 'concerning county government' only where its provisions affect the functions and powers of county governments set out in the Fourth Schedule of the Constitution.
  • A Bill returned to Parliament by the President under Article 115 need not be re-committed to a departmental committee; Parliament may consider the President's reservations directly and may amend the Bill or pass it a second time.
  • Once Parliament has facilitated public participation on a Bill, it is not required to conduct further public participation on every amendment, including amendments to accommodate presidential reservations, so long as the views expressed were taken into account.
  • The courts will not readily interfere with tax policy and rates determined by the National Assembly absent demonstrable unconstitutionality, perversity or manifest irrationality.
  • A party making an ex parte application owes the court a duty of full and frank disclosure of all material facts, and material non-disclosure amounts to abuse of the court process.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Constitutional Petition Nos. 353 of 2017 and 505 of 2017 (consolidated)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court's judgment in the consolidated constitutional petitions

Relief refused

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Declaration that the Finance Act, 2017 amendments to the BLG Act were unconstitutional for failure to involve the Senate

The Finance Act was a Money Bill which did not concern county governments

p. 8

Nullification of the enactment process for breach of parliamentary procedure

Article 115 governs Bills referred back by the President and did not require committal to a departmental committee

p. 11

Nullification for lack of public participation on the President's reservations

The Bill had already been subjected to adequate public participation and no further participation was required on the narrow issue of the tax rate

p. 13

Declaration that the 35% tax was unfair, punitive or discriminatory

Taxation rates are a policy matter for the National Assembly and no unfairness or discrimination was demonstrated

p. 15

Costs

Appeal dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To qualify as a Bill “concerning county government”, the bill must be one whose provisions afiect the functions and powers of the county governments set out in the Fourth Schedule of the Constitution.
p. 9Test for a Bill concerning county governments
Article 115 does not specifically require the bill referred back by the President to be first committed to a departmental committee.
p. 11Procedure for Bills referred back by the President
A party who approaches the court, particularly ex parte, is under a duty to make full and honest disclosure of all material facts.
p. 15Duty of full and frank disclosure in ex parte applications
We have come to the conclusion that the learned judge did not err in dismissing the consolidated petitions. Accordingly, this appeal fails and is hereby dismissed with costs to the respondents. It is so ordered.
p. 16Final orders / disposition

Issues in the judgment

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minor

The judgment refers to 'clause 29A' amending section 59B of the BLG Act in one passage but 'clause 29' elsewhere, and quotes a memorandum referring to 'The Betting, Lotteries and Gambling Act (Cap. 131)' while the judgment elsewhere styles it the 'Betting, Lotteries and Gaming Act'; there are also recurring typographical errors ('afiiect', 'efiected') suggesting OCR/scanning defects in the copy.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pevans East Africa Ltd & another v Chairman, Betting Control & Licensing Board & 7 others (Civil Appeal 11 of 2018) [2018] KECA 332 (KLR)", Case Analysis (2018). Civil Appeal (consolidated appeals from High Court Const. Petition Nos. 353 of 2017 and 505 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/332/eng@2018-05-04

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