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Court of AppealAllowedCivil Application No. 363 of 2018 (UR No. 296 of 2018)· [2019] KECA 936 (KLR)

Kenya Revenue Authority v Tom Odhiambo Ojienda SC & another [2019] KECA 936 (KLR)

Court of Appeal
6 February 2019
2,478 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of a full bench of the Court of Appeal at Nairobi (Koome, Murgor and Kantai, JJA) on a notice of motion under Rule 5(2)(b) of the Court of Appeal Rules by the Kenya Revenue Authority seeking stay of execution of orders issued on 4th December 2018 by Okwany J in Nairobi Constitutional Petition No. 418 of 2018. The impugned orders compelled KRA to issue Prof. Tom Odhiambo Ojienda SC with a tax compliance certificate for 2018/2019 pending determination of the petition, and required the Law Society of Kenya to accept his nomination as male representative to the Judicial Service Commission without the certificate should KRA not comply. The court restated the twin principles from Ishmael Kagunyi Thande v Housing Finance Company Limited: an arguable appeal and nugatoriness. It identified six arguable issues, including whether the High Court could compel issuance of a TCC without a compliance check, whether the order usurped KRA's statutory mandate, and whether the 4th December orders conflicted with conservatory orders of 2nd November 2018 issued by Chacha Mwita J restraining tax investigations. On nugatoriness, the court held that KRA would be compelled to issue a TCC without it being established that this complied with the Tax Procedures Act, and the LSK would be denied its vetting role. The court allowed the application, granted stay of execution of the 4th December 2018 orders pending the intended appeal, and ordered that costs of the application abide the outcome of the appeal. The ruling binds lower courts on the Rule 5(2)(b) threshold and signals judicial restraint from displacing statutory mandates of revenue and professional bodies.

Key legal issues

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01

Whether the intended appeal is arguable under Rule 5(2)(b)

Holding

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.

Reasoning

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.

p. 3
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 27
  • Tax Procedures ActSection 2
  • Tax Procedures ActSection 72(2)
  • Tax Procedures ActSection 72(3)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Ishmael Kagunyi Thande v Housing Finance Company Limited
    Civil Application No. 156 of 2006 (ur)
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.