Kenya Revenue Authority v Association (Civil Application E139 of 2021) [2021] KECA 16 (KLR)
The bottom line
#Kenya's Court of Appeal refused to suspend orders blocking minimum tax, ruling KRA must satisfy both stay tests, not just one.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The question whether the Judge erred in issuing conservatory orders staying Section 12D at an interim stage and in disregarding Articles 201(b)(1) and 210 of the Constitution was sufficient to engage the court on appeal.
The court applied the settled Rule 5(2)(b) test: an arguable appeal need not be one that must succeed; it is enough that it is not frivolous or idle. The raised grounds concerning interim conservatory orders against a taxing statute and the equity of the tax burden under Articles 201(b)(1) and 210 were sufficient to meet the first limb.
Whether the intended appeal would be rendered nugatory absent a stay
The nugatory limb was not demonstrated because the KRA can continue collecting tax under the existing regime, and any tax collected can be refunded if the appeal succeeds.
The new minimum tax under Section 12D did not stop all other forms of taxation, so KRA could continue collecting other taxes under the current regime. The annual budget was already in place, so Government revenues would not be affected, and the Income Tax Act contains mechanisms for collecting the tax or refunding contributors later. Failure of one limb defeats the application.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability limb and the nugatory limb; demonstrating only one limb will not avail the applicant.
- The nugatory limb asks whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The application dated 3rd May 2021 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules; filed notice of appeal conferring jurisdiction (Ruben & 9 Others v Nderito & Another, [1989] KLR 459)
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.
- Nimrod v Kiranga & another (Environment and Land Case 43 of 2019) [2026] KEELC 2809 (KLR)[2026] KEELC 2809 (KLR)13 May 2026
Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v Association (Civil Application E139 of 2021) [2021] KECA 16 (KLR)", Case Analysis (2021). Civil Application (Nai.) arising from intended appeal against High Court conservatory orders of 19th April 2021 (Odunga J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/16/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.