Kenya Revenue Authority v Robert Anyisi; Nairobi City County Government (Interested Party) [2020] KECA 720 (KLR)

The Court rejected the argument that a declaration of unconstitutionality is a negative order that cannot be stayed. Relying on Njuguna S. Ndungu v Ethics & Anti-Corruption Commission, it held that the inherent jurisdiction under Rule 5(2)(b) allows orders maintaining the status quo pending appeal even where the impugned order is declaratory. The applicant showed the nullified provisions were actively in use and their removal created absurdities.

Counsel for the respondent conceded the constitutional validity issue was arguable. The Court also found arguable the point that nullifying some subsections left others in operation creating absurdities in law enforcement, and that the orders had far-reaching implications crippling the applicant's tax enforcement mandate. These sufficed at the interlocutory stage without delving into the merits.

The Court accepted that without stay the applicant could not audit, investigate tax evasion, or enforce tax collection, with hardship to the national economy. Public interest in revenue collection and the fact that the trial Judge had himself issued a temporary stay pending appeal weighed in favour of granting stay. The Court also invoked the public interest principle from Gatirau Peter Munya v Dickson Mwenda Kithinji.

The respondent argued the Record of Appeal was filed outside sixty days from the notice of appeal and should be deemed withdrawn. The Court held the Rule 5(2)(b) application was not the proper forum; a separate application under Rule 84 seeking to strike out the notice of appeal or appeal should have been filed within thirty days. The objection was accordingly not addressed on its merits.