Barclays Bank of Kenya v Commissioner of Domestic Taxes (large Taxpayers Office)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal on withholding tax on card transaction, interchange and settlement fees raises a matter of general public importance
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.
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.
The criteria governing certification of appeals to the Supreme Court under Article 163(4)(b)
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.
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.
Legal principles established
#- 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
#- 1.The application dated 10th November, 2020 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.