Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application (Rule 5(2)(b)) arising from Kericho Constitutional Petition No. 4 of 2023· [2024] KECA 923 (KLR)

Kenya Revenue Authority v County Assemblies Forum & 3 others (Civil Application E093 of 2023) [2024] KECA 923 (KLR)

Court of Appeal of Kenya
26 July 2024
1,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal paused a ruling that spared county assembly members' car reimbursements from tax, so KRA can keep taxing until the appeal ends.

What this practically means

#

Executive summary

#
This was an application under Rule 5(2)(b) of the Court of Appeal Rules by the Kenya Revenue Authority seeking a stay of execution of a High Court judgment delivered by Sergon J on 12th October 2023 in Kericho Constitutional Petition No. 4 of 2023. The High Court had declared that the Members of County Assembly Motor Vehicle reimbursement amount does not fall within Sections 3 and 5 of the Income Tax Act and is not subject to tax, and restrained the KRA from imposing tax on that benefit. Following the judgment, the Parliamentary Service Commission and the 47 County Assemblies stopped deducting the tax, and County Assemblies which had remitted taxes sought refunds. The KRA lodged an appeal, notice being filed on 16th October 2023. Applying the settled twin principles from Stanley Kang'ethe Kinyanjui v Tony Keter, the Court found the appeal arguable - a position the respondents expressly conceded - because there remains a genuine dispute over the meaning of the statutory provisions. The respondents urged the Court to follow Kenya Revenue Authority v De La Rue, where no stay was granted because the applicant was merely being required to comply with the law. The Court distinguished that case, holding that until the appeal is determined it will not be clear whether the trial court correctly interpreted the statute. Taking judicial notice of the five-year electoral cycle of Members of County Assemblies, the Court found that compulsory refunds might be irreversible, so a successful appeal could be rendered nugatory. The Court granted a stay of execution of the judgment and orders flowing from it, to remain in force until the appeal is determined, with costs of the application to abide by the appeal.

Key legal issues

#
01

Whether the appeal is arguable

Holding

The appeal is arguable; the respondents conceded this, and the Court found that the decision of the High Court on the taxability of the motor vehicle reimbursement could possibly be upset on appeal.

Reasoning

The Court observed that there is a live dispute about the meaning and tenor of the Income Tax Act provisions: the applicant contends the amounts fall within Sections 3 and 6 and are taxable, while the High Court declared them not taxable. With the respondents themselves conceding arguability, and the appeal process already set in motion, the first twin principle was satisfied without the Court making definitive findings on the statutory interpretation.

p. 4
02

Whether the appeal would be rendered nugatory absent a stay

Holding

Yes. If the appeal succeeded after refunds had been compelled, the appeal may be rendered nugatory, given the five-year electoral cycle of Members of County Assemblies and the possibility that members may exit office.

Reasoning

The respondents relied on the De La Rue authority, where no stay was granted because the applicant was merely being told to comply with the law. The Court distinguished that case: here there is a genuine dispute over statutory interpretation that remains unresolved pending appeal. Taking judicial notice of the five-year election cycle, the Court found that compelled refunds might be irreversible, satisfying the nugatory principle.

p. 5
03

Distinction from the De La Rue principle that a party merely required to comply with the law cannot claim nugatory prejudice

Holding

De La Rue was distinguished because it concerned breach of mandatory procurement provisions, whereas this case involves a disputed interpretation of a statutory provision whose correctness will only be clear after the appeal is determined.

Reasoning

In De La Rue, Nyamu J had found breach of the mandatory provisions of the Public Procurement and Disposal Act, so refusing stay simply compelled lawful conduct. Here, by contrast, the High Court declaration rested on an interpretation of Sections 3 and 5/6 of the Income Tax Act that remains contested and arguable; hence refusing a stay would not merely enforce the law but could pre-empt the appellate determination.

p. 4

Legal principles established

#
  • A stay under Rule 5(2)(b) requires the applicant to satisfy the twin principles of an arguable appeal and that the appeal would otherwise be rendered nugatory.
  • An application for stay may be granted where, unlike a mere direction to comply with the law, there is a genuine dispute about the meaning of a statutory provision whose resolution is pending on appeal, such that reversal of the judgment may be impossible.
  • Where Members of County Assemblies hold office only for a five-year electoral cycle, refunds of taxes collected may be irreversible, rendering a successful appeal nugatory if stay is refused.

Court orders

#
  1. 1.An order of stay of execution of the judgment delivered on 12th October 2023 in Kericho Constitutional Petition No. 4 of 2023, together with the orders flowing therefrom
  2. 2.The stay order to remain in force until the hearing and determination of the applicant's appeal
  3. 3.Costs of the application to abide by the appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 77
  • Income Tax ActSections 3 and 5
  • Income Tax ActSections 3 and 6
  • Tax Procedures ActSections 39 and 40
  • Public Procurement and Disposal Actmandatory provisions

Cases cited (9)

  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Kenya Revenue Authority vs De La Rue Currency and Security Print Limited & 2 Others
    [2009] eKLR
On appeal from
High Court of Kenya, Kericho
Constitutional Petition No. 4 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - stay of execution pending appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Revenue Authority v County Assemblies Forum & 3 others (Civil Application E093 of 2023) [2024] KECA 923 (KLR)", Case Analysis (2024). Civil Application (Rule 5(2)(b)) arising from Kericho Constitutional Petition No. 4 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/923/eng@2024-07-26

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