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Court of AppealDismissedCivil Appeal No. 85 of 2015· [2019] KECA 938 (KLR)

Republic v Commissioner for Investigation & Enforcement [2019] KECA 938 (KLR)

Court of Appeal
8 February 2019
4,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that tax authorities can demand full payment when businesses breach tax remission conditions, even where the Minister granted the exemption.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Nairobi (Nambuye, Kiage and M'inoti, JJ.A.) dismissing an appeal by Wananchi Group Kenya Ltd (prosecuted as Republic) against the High Court's dismissal (Odunga, J., 7 February 2014) of its judicial review application for certiorari and prohibition against an agency notice by the Commissioner for Investigation and Enforcement demanding Kshs. 124,866,992.80 as tax due on goods imported under a VAT remission granted by the Minister for Finance. The appellant argued that only the Minister could cancel a remission, by revocation under regulation 8, and that the Commissioner's demand countermanded the Minister's decision and was ultra vires. The Court held that the Minister's power to grant remission under section 23 of the repealed VAT Act was conditional and subject to inspection and audit by the Commissioner; enforcing those conditions on breach was not countermanding the Minister. Regulation 8 revocation addresses only future remissions and does not exempt goods already imported in breach, for which taxes became due and payable in full. The Court found the disputed items - decoders, set-top boxes, internet modems, coaxial cables, lashing wires and drop cables - to be accessories or stock in trade excluded from remission, and declined to substitute its view for the Commissioner's technical determination absent illegality or Wednesbury unreasonableness. It also held the trial judge never found there was no evidence of remission. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the respondent had power to demand tax where the Minister had granted VAT remission

Holding

The respondent had power to investigate compliance with the conditions of the remission and to enforce payment where conditions were breached; this did not amount to countermanding the Minister or acting ultra vires

Reasoning

The Minister's power under section 23(1) was subject to section 23(3) and to conditions. The remission expressly excluded spares and accessories, required facilitation of inspection, and provided that taxes became payable in full on breach. The inspection and audit provisions would be meaningless if the Commissioner had no role after remission was granted. Enforcing those conditions is not revoking remission, which regulation 8 addresses only prospectively.

p. 4
02

Whether the learned judge held that there was no evidence that the Minister granted the remission

Holding

He did not; he only noted that neither party produced the Gazette order, while accepting it was common ground that remission had been granted. The ground of appeal was bereft of merit.

Reasoning

The judgment under appeal recorded that it was agreed by the parties that the Minister granted remission, and decried the failure to exhibit the Gazette Notices, but stated he would proceed on the basis that the Minister acted within section 23(3). The appellant's characterization of the judgment was a misapprehension.

p. 5
03

Whether the judicial review remedies of certiorari and prohibition should have been granted

Holding

No. Having found the respondent acted within its powers, there was no basis for the remedies; the court will not substitute its views for those of the statutory decision-maker absent illegality or irrationality

Reasoning

Judicial review supervises the legality of the exercise of power; it is not an appeal on the merits. The duty to determine whether goods are capital or non-capital goods is vested in the respondent, and its detailed reasons disclosed no unreasonableness or procedural impropriety. The court adopted the reasoning in Mastermind Tobacco and the Supreme Court Practice passage on the limits of review.

p. 4

Legal principles established

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  • The Commissioner for Investigation and Enforcement does not countermand the Minister's decision in granting remission by investigating and enforcing the conditions on which remission was granted; the Minister's power to grant remission is subject to the statutory conditions and to inspection and audit by the Commissioner
  • A beneficiary of conditional tax remission cannot retain the exemption for goods already imported in breach of the remission conditions merely because revocation under regulation 8 would only prevent future remissions; taxes become due and payable in full on breach
  • On judicial review, a court does not act as an appellate body over a statutory decision-maker's technical determination unless the decision is tainted by unreasonableness, illegality, irrationality or procedural impropriety

Court orders

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

Authorities

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Legislation

  • Value Added Tax Act (repealed)Section 23(1)
  • Value Added Tax Act (repealed)Section 23(2)
  • Value Added Tax Act (repealed)Section 23(3)
  • Value Added Tax Act (repealed)Section 25(1)
  • Value Added Tax Act (repealed)Section 58
  • Value Added Tax (Remission) (Investment) Regulations, 2004Regulation 5
  • Value Added Tax (Remission) (Investment) Regulations, 2004Regulation 6
  • Value Added Tax (Remission) (Investment) Regulations, 2004Regulation 7
  • Value Added Tax (Remission) (Investment) Regulations, 2004Regulation 8

Cases cited (7)

  • Tanzania Tea Packers Ltd v. Commissioner of Income Tax
    [2000] 1 EA 233
  • Anthony Holden & Sons v. Amalgamated Clothing & Allied Trade Unions
    [1932] 47 CLR 1
  • Republic v Kenya Revenue Authority & Another ex parte Bear Afric (K) Ltd
    Misc. App. No. 285 of 2013
  • Republic v. Commissioner of Customs & Excise & Another ex parte Mwalimu Digore
    Misc. App. No. 62 of 2006
  • Republic v. Kenya Revenue Authority ex parte Bata Shoe Company (Kenya) Ltd
    [2014] eKLR
  • Mastermind Tobacco (K) Ltd v Commissioner of Domestic Taxes & 2 Others
    CA No. 44 of 2013
  • Edward Ilandi Kitheka v. Independent Electoral & Boundaries Commission & Another
    CA No. 212 of 2017
On appeal from
High Court of Kenya at Nairobi
HC. Misc. App. No. 836 of 2013
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (judicial review), the appeal having been lodged as of right against the judgment and decree of the High Court

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, "Republic v Commissioner for Investigation & Enforcement [2019] KECA 938 (KLR)", Case Analysis (2019). Civil Appeal No. 85 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/938/eng@2019-02-08

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