Kenya Revenue Authority v Tom Odhiambo Ojienda SC & another [2019] KECA 936 (KLR)
The bottom line
#The Court of Appeal paused orders forcing KRA to issue Prof. Ojienda a tax compliance certificate, ruling his planned appeal raised questions worth a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b)
The court found arguable points, including whether the High Court could compel issuance of a tax compliance certificate without a compliance check, whether the order usurped KRA's statutory mandate, and whether the 4th December orders conflicted with those of 2nd November 2018.
The court restated the settled twin principles for a Rule 5(2)(b) application from Ishmael Kagunyi Thande v Housing Finance Company Limited, cautioned that an arguable appeal need not succeed, and held that the issues gleaned from the draft memorandum of appeal merited a full hearing.
Whether the appeal would be rendered nugatory if stay is not granted
Stay was granted because, absent it, KRA would be compelled to issue a TCC without establishing whether doing so contravenes the laid-down procedure, and the Law Society of Kenya would be denied the opportunity to vet all nominees using the same criteria.
The court reasoned that the mandatory order would force the revenue authority to issue a certificate without a compliance check contrary to the Tax Procedures Act, and would undermine the LSK's statutory vetting function, so the appeal would be rendered nugatory if not stayed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent stay.
- An arguable appeal need not be one that must succeed, only one which merits full argument.
Court orders
#- 1.Stay of execution of the Ruling delivered on 4th December, 2018 in Nairobi High Court Constitutional Petition No. 418 of 2018 and any consequential orders, pending the hearing and determination of the applicant's intended appeal
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya, Nairobi, Constitutional and Human Rights Division
- Constitutional Petition No. 418 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Wanjohi & 3 others v Assets Recovery Agency [2020] KECA 83 (KLR)[2020] KECA 83 (KLR)4 Dec 2020
Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v Tom Odhiambo Ojienda SC & another [2019] KECA 936 (KLR)", Case Analysis (2019). Civil Application No. 363 of 2018 (UR No. 296 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/936/eng@2019-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.