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 AppealDismissedCivil Application No. E755 of 2025

Hemingways Watamu Limited v Commissioner of Domestic Taxes (KRA)

Court of Appeal
25 September 2026
1,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to pause a tax judgment against Hemingways Watamu because KRA can simply refund the money if the hotel wins its appeal.

What this practically means

#

Executive summary

#
This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (Gatembu, Odunga & Ndolo, JJ.A.) on Hemingways Watamu Limited's application dated 16th December 2025 under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution and implementation of the High Court's judgment of 7th October 2025 in HC. Tax Case No. E306 of 2024 pending an intended appeal. The background is a VAT and income tax dispute: KRA disallowed input VAT and investment deduction claims; the Tax Appeals Tribunal set aside KRA's objection decision; the High Court partially allowed KRA's appeal, substituting a 100% investment deduction for the Tribunal's 150% finding and remitting the VAT assessment question to the Tribunal. Hemingways lodged a Notice of Appeal and sought a stay. Applying the settled twin test, the court found the intended appeal arguable on the question whether the applicant's entitlement is to a 150% deduction under Paragraph 24(1)(f) or 100% under Paragraph 24(1)(e) of the Second Schedule to the Income Tax Act. However, the nugatory limb failed: no enforcement steps had been taken by KRA, and the court accepted KRA's submission that Section 47 of the Tax Procedures Act provides an elaborate refund mechanism securing the applicant if the appeal succeeds. The application was accordingly dismissed with costs to the respondent. The decision below was not disturbed; the intended appeal remains pending.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if the orders sought are declined and the intended appeal ultimately succeeds, the success will be rendered nugatory

Key legal issues

#
01

Arguability of the intended appeal on the investment deduction rate (150% vs 100%)

Holding

The dispute over whether Hemingways is entitled to a 150% investment deduction under Paragraph 24(1)(f) or 100% under Paragraph 24(1)(e) of the Second Schedule to the Income Tax Act renders the intended appeal arguable and not frivolous.

Reasoning

The court weighed the rival contentions: the applicant relied on the Tribunal's finding of a 150% deduction under Paragraph 24(1)(f), while KRA defended the High Court's finding of 100% under Paragraph 24(1)(e). The court found this a genuine point of contestation sufficient to satisfy the arguability limb of the Rule 5(2)(b) test, without expressing any view on its eventual merits.

p. 6
02

Whether refusal of a stay would render the intended appeal nugatory

Holding

The nugatory limb failed: no enforcement had been instituted, and KRA's capacity to refund under Section 47 of the Tax Procedures Act meant any success on appeal would not be rendered hollow.

Reasoning

The applicant's deponent conceded no enforcement mechanisms had been instituted and gave unelaborated apprehensions of irreparable harm. The court held that monetary exposure alone does not establish nugatory-ness where the respondent can refund; KRA pointed to the elaborate statutory refund mechanism under Section 47 of the Tax Procedures Act, which the court found meritorious and securing.

p. 8

Legal principles established

#
  • An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that, if the orders are declined and the appeal succeeds, the success will be rendered nugatory.
  • An arguable appeal need not be one that must succeed; it is one that ought to be fully argued before the Court.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party.

Court orders

#
  1. 1.The applicant's application dated 16th December 2025 is dismissed
  2. 2.Costs of the application to the respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi (Commercial & Tax Division)
HC. Tax Case No. E306 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

#

Stay of execution of the High Court judgment dated 7th October 2025 pending the intended appeal

Although the intended appeal was arguable, the applicant failed to demonstrate that its success would be rendered nugatory, given KRA's statutory refund mechanism

p. 9

Stay of implementation of the judgment, including issuance of revised or additional tax assessments, claw-back of investment deductions, penalties or interest, and recovery or enforcement proceedings

Failed with the main stay application; no enforcement mechanisms had been instituted and KRA could refund under Section 47 of the Tax Procedures Act

p. 8

Costs

Dismissed with costs to the respondent

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Hemingways is required to demonstrate that its intended appeal is arguable and that if we decline the orders sought, and the intended appeal ultimately succeeds, it will be success in vain.
p. 5Rule 5(2)(b) twin test
an arguable appeal is not one which must necessarily succeed, but one which ought to be fully argued before the Court
p. 6Meaning of arguable appeal
Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen will be reversible, or if it is not, whether damages will reasonably compensate the aggrieved party.
p. 8Nugatory principle
Consequently, the applicant's application dated 16th December 2025 fails. It is hereby dismissed with costs to the respondent.
p. 9Final orders / disposition

Issues in the judgment

#
minor

The High Court judge's name is rendered inconsistently within the ruling.

minor

Pagination is internally inconsistent, repeating 'Page 1 of 6' through 'Page 9 of 6'.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hemingways Watamu Limited v Commissioner of Domestic Taxes (KRA)", Case Analysis (2026). Civil Application No. E755 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1733/eng@2026-09-25

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