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Case Brief · caselaw.co.ke
Court of AppealDismissedNairobi Civil Appeal No. 195 of 2017 (certification application dated 10th November 2020)· [2021] KECA 193 (KLR)

Barclays Bank of Kenya v Commissioner of Domestic Taxes (large Taxpayers Office)

Court of Appeal
5 November 2021
2,855 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused Absa (formerly Barclays Bank of Kenya) permission to take its card-fee withholding tax dispute to the Supreme Court, ruling it was not a matter of general public importance.

What this practically means

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Executive summary

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Barclays Bank of Kenya Limited (now Absa Bank Kenya PLC) moved the Court of Appeal under Article 163(4)(b) of the Constitution for certification that its intended appeal against the Court's own judgment in Nairobi Civil Appeal No. 195 of 2017 (Commissioner of Domestic Taxes v Barclays Bank of Kenya Limited) raised matters of general public importance, and for leave to appeal to the Supreme Court. The bank argued that the Court below had erred in treating transaction and interchange fees paid to card companies as royalties or disguised management and professional fees chargeable to withholding tax under the Income Tax Act; that no such claim had been pleaded, offending Article 50(1); that the judgment affected the entire banking and card payment industry; and that it conflicted with a prior High Court decision by Majanja, J. The Commissioner opposed, contending the assessment was case-specific and the issues did not transcend the parties' circumstances. Applying the Supreme Court's ten-point criteria in Malcolm Bell, the Court held that only one issue arose: whether the intended appeal involves matters of general public importance. It found the issues were no more than contested facts between the parties that did not transcend the case; that the burden lay with the applicant to show lacunae or uncertainty in the law, which was not discharged; and that the claimed industry-wide effects were mere apprehensions. The application was dismissed with costs on 5th November 2021.

Key legal issues

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01

Whether the intended appeal on withholding tax on card transaction, interchange and settlement fees raises a matter of general public importance

Holding

The Court held that the matters raised were case-specific factual contests between the applicant and the Commissioner, and the applicant bore but failed to discharge the burden of showing lacunae or uncertainty in the law. Certification was refused.

Reasoning

Applying the Malcolm Bell criteria, the Court noted that a case qualifies for certification only where the issue transcends the parties' circumstances and bears significantly on the public interest. The dispute concerned assessments directed to a specific taxpayer; alleged industry-wide effects were mere apprehensions, which the criteria disallow as a basis for certification. The applicant did not demonstrate contradictory precedents creating legal uncertainty.

p. 6
02

The criteria governing certification of appeals to the Supreme Court under Article 163(4)(b)

Holding

The Court restated and applied the Supreme Court's criteria in Malcolm Bell, including that questions of law must have arisen and been determined below, and that mere apprehension of miscarriage of justice is not a proper basis for certification.

Reasoning

The Court adopted verbatim the ten-point Malcolm Bell criteria as the governing framework, and added that certification may issue only where the intended appeal concerns a matter of law of great public importance or of general importance. Only one issue arose for determination: whether the intended appeal involves matters of general public importance, which the Court answered negatively.

p. 6

Legal principles established

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  • The burden of demonstrating lacunae or uncertainty in the law lies on the applicant seeking certification under Article 163(4)(b)
  • Determinations of fact in contests between parties do not, by themselves, form a basis for certification of an appeal to the Supreme Court
  • An applicant for certification must show that the issue transcends the circumstances of the particular case and has a significant bearing on the public interest

Court orders

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  1. 1.The application dated 10th November, 2020 is dismissed
  2. 2.The applicant is to pay the costs of the application
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya, 2010 (certification of an intended appeal as involving a matter of general public importance)

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, "Barclays Bank of Kenya v Commissioner of Domestic Taxes (large Taxpayers Office)", Case Analysis (2021). Nairobi Civil Appeal No. 195 of 2017 (certification application dated 10th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/193/eng@2021-11-05

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