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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment· [2025] KECA 510 (KLR)

Kenya Revenue Authority v David Mwangi Ndegwa

Court of Appeal
21 March 2025
6,656 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that VAT applies to commercial premises; only land and residential premises are tax-exempt.

What this practically means

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Executive summary

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This appeal concerned the correct interpretation of section 5 of the Value Added Tax Act, 2013 read with paragraph 8 of Part II of the First Schedule, which exempts the supply by way of sale, renting, leasing, hiring or letting of land or residential premises from VAT. The respondent purchased commercial premises from Standard Chartered Bank for Kshs. 70,000,050 and paid Kshs. 11,200,080 as VAT under protest. Kasango, J. held that the constitutional definition of 'land' in Article 260 includes everything on the surface and airspace, so the sale of any land, with residential or commercial buildings, was VAT-exempt, and ordered a refund. The Court of Appeal reversed. It held that Article 260's definition applies only where context permits, and that a legislature may define 'land' differently in a particular statute, as the Mining, Water and Petroleum Acts do. Applying the expressio unius maxim, the express exemption of residential premises and the silence on commercial premises mean commercial premises are not exempt. The legislative history from 2006 confirmed Parliament never treated buildings as synonymous with land. The Court found no ambiguity in paragraph 8, declined to rule on mixed-use premises as obiter, and held the VAT was lawfully levied. The appeal was allowed, the High Court judgment of November 29, 2018 set aside, the respondent's suit dismissed, and costs awarded to the appellant.

Key legal issues

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01

Whether the constitutional definition of 'land' includes buildings for purposes of the VAT Act

Holding

It does not. Article 260's definition applies only where the context permits, and the VAT Act may legitimately define land so as to exclude premises erected on it

Reasoning

Article 260 opens with 'In this Constitution, unless the context requires otherwise', showing the definition is not intended for all contexts. Other statutes, such as the Mining Act, Water Act and Petroleum Act, treat minerals, water and petroleum as distinct from land notwithstanding Article 260. The Latin maxims quicquid plantatur solo solo cedit and cuius est solum are not legal rules of universal application. The Land Act itself treats land as distinct from buildings. The Legislature was therefore free to define land differently in the VAT Act.

p. 8
02

Whether paragraph 8 of Part II of the First Schedule to the VAT Act is ambiguous

Holding

There is no ambiguity; the provision clearly exempts only supply of land and residential premises, and commercial premises remain vatable

Reasoning

The draftsperson provided separately and distinctly for the exemption of supply of 'land' and of 'residential premises'. By the expressio unius est exclusio alterius maxim, the express mention of residential premises and the omission of commercial premises means commercial premises are not exempt. The legislative history confirms Parliament never treated residential and non-residential buildings as synonymous with land. Courts should not strain words to find ambiguity in a tax statute; absent ambiguity, the tax must be upheld.

p. 11
03

Whether the VAT refund ordered by the High Court was payable

Holding

No; the VAT was lawfully levied on the supply of commercial premises, so the High Court erred in ordering the refund

Reasoning

Having found that the supply of commercial premises is not exempt from VAT and that paragraph 8 is not ambiguous, it follows that the appellant lawfully levied VAT on the respondent's transaction. The consequence is that the High Court's order for refund of Kshs. 11,200,080.00 cannot stand. Section 30 of the VAT Act on refunds of tax paid in error was held inapplicable below because the payment was made under protest, but that question falls away with the reversal.

p. 11
04

Interpretation of mixed-use premises under paragraph 8

Holding

The Court declined to determine how VAT applies to mixed-use premises, as the issue was not before it and had not been fully argued

Reasoning

Although the High Court had used perceived unclarity over mixed-use premises to demonstrate ambiguity, and the Court itself raised the question of a commercial ranch, the Court held that the only question it could legitimately answer was whether commercial premises are exempt. Determining mixed-use questions without full argument would be mere obiter dicta; the issue must await a case where it is properly raised.

p. 11

Legal principles established

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  • The definition of 'land' in Article 260 of the Constitution is context-dependent and does not automatically apply to all statutes; a legislature may define 'land' differently in a particular statute without constitutional difficulty
  • Under paragraph 8 of Part II of the First Schedule to the VAT Act, 2013, only the supply of land and of residential premises is exempt from VAT; supply of commercial premises is not exempt
  • A court should not strain the words of a tax statute to find an ambiguity; where there is no ambiguity the tax must be upheld
  • Courts must give effect to every word of a statute and eschew interpretations that render express provisions otiose

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court dated November 29, 2018 set aside and substituted with an order dismissing the respondent's suit in the High Court
  3. 3.Appellant awarded costs of the suit and of the appeal
On appeal from
High Court at Nairobi
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the High Court (not expressly stated in the judgment; the appeal lies from the High Court under the Court of Appeal's ordinary appellate jurisdiction)

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, "Kenya Revenue Authority v David Mwangi Ndegwa", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/510/eng@2025-03-21

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