The Clerk of The National Assembly of Kenya & 1 other v Rev Dr Timothy Njoya & 17 Others
The bottom line
#Kenya's Court of Appeal confirmed that MPs, like all State officers, must pay tax on their salaries and allowances—transitional constitutional provisions cannot create tax exemptions.
What this practically means
#Executive summary
#Key legal issues
#Proof of the circular and reliance on newspaper reports
The failure to produce the circular and reliance on newspaper articles did not vitiate the High Court judgment because the Appellants admitted the underlying facts and never challenged the admissibility of the newspaper reports at trial
The Court reasoned that burden of proof arises only where a fact is in issue and the evidence adduced must be of probative value. It was not in issue at trial that MPs were seeking not to pay tax; the Appellants did not deny the facts in the newspaper reports in their pleadings, and admissibility was never raised before the trial court. Under section 61 of the Evidence Act admitted facts need not be proved.
Effect of the transitional provisions of the Sixth Schedule on the taxation of MPs
The saved provisions were limited to what was necessary for the discharge of the business of the National Assembly and did not exempt Members of the 10th Parliament from paying tax on their salaries and allowances
A plain and contextual reading of sections 3(2), 7 and 10 of the Sixth Schedule shows the saved provisions concerned the composition, legislative power and conduct of business of the Assembly. Section 7 required existing laws to be construed with modifications to conform with the Constitution. Had the intention been to exclude Article 210(3), it would have been expressly stated.
Legitimate expectation and property rights
No legitimate expectation not to pay tax could arise, and the rights saved under section 6 of the Sixth Schedule are collective rights of the State, not private rights of Members of Parliament
The Court held that legitimate expectation cannot run contrary to law, and Article 210(3) prohibits any law excluding State officers from tax by reason of office. Section 6 of the Sixth Schedule preserves rights and obligations of the Government, which under the 2010 Constitution are the collective rights of the State for continuity of governmental functions, not private entitlements of individual legislators.
Legal principles established
#- Transitional provisions modify the application of substantive constitutional provisions for a limited period; they do not exclude or replace them, and they cannot be used to exempt State officers from the constitutional obligation to pay tax under Article 210(3)
- No legitimate expectation can arise that is contrary to law; Article 210(3) prohibits any law excluding a State officer from payment of tax by reason of the office held
- The rights and obligations saved by section 6 of the Sixth Schedule are the collective rights and obligations of the State, not private rights of Members of Parliament
- Facts admitted by parties or by their pleadings need not be proved in civil proceedings; burden of proof under section 109 of the Evidence Act arises only in respect of a fact in issue
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs, in light of the public interest nature of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Constitution Petition No. 137 of 2013
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal under the Constitution and Appellate Jurisdiction Act (not expressly cited; the Court describes itself as 'a first appellate Court')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Clerk of The National Assembly of Kenya & 1 other v Rev Dr Timothy Njoya & 17 Others", Case Analysis (2024). Civil Appeal (arising from Nairobi Constitution Petition No. 137 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/524/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.