Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtDismissedConstitutional Petition No 271 of 2019· [2019] KEHC 4631 (KLR)

Petitioner (limited liability company carrying on betting and gaming business) v Betting Control and Licensing Board & 2 Others; Interested Party (telecommunications company)

High Court of Kenya
30 August 2019
20,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~83 min to read original · ~4 min brief

The bottom line

#

In Kenya, meeting all statutory requirements, especially tax obligations, is mandatory for regulated businesses seeking license renewal.

What this practically means

#

Executive summary

#
The Petitioner, a betting and gaming operator whose Bookmakers and Public Gaming Licences expired on 30th June 2019, challenged the Betting Control and Licensing Board's letter of 1st July 2019 rejecting its renewal applications, which cited unspecified pending investigations. It sought declarations that the rejection violated Article 47 and the Fair Administrative Action Act, that section 5(3) of the Betting, Lotteries and Gaming Act (permitting refusal without reasons) was unconstitutional, certiorari to quash the decision, and prohibitions against the Respondents and the telecommunications Interested Party suspending its Pay Bill numbers. The Petition was heard alongside two similar Petitions. The court framed twelve issues. It held, construing the Act purposively against its preamble and sections 29A and 55A, that proof of payment of taxes, including withholding tax, is a material and relevant consideration and a requirement for licensing; the Petitioner had not provided proof of withholding tax payment despite a Tax Compliance Certificate. It found the Petitioner knew the reasons for refusal and that section 5(3) gave statutory backing to refusal without reasons, with intelligence and security information exempt under section 6 of the Access to Information Act. The decision was neither ultra vires, arbitrary, malicious nor grossly unreasonable; no hearing was required for an application decided on statutory documents; legitimate expectation cannot override clear statutory provisions; section 5(3) passed the proportionality test; refusal of a licence is not an interference with property under Article 40; and section 3(12) shields Board officers acting in good faith from personal suit, rendering the second and third Respondents improperly joined. The Petition was dismissed in its entirety with no orders as to costs.

Key legal issues

#
01

Whether tax compliance is a relevant consideration in licensing under the Act

Holding

Yes - proof of payment of withholding tax is both a relevant consideration and a requirement; the Petitioner did not provide proof of withholding tax payment

Reasoning

Reading the preamble (which includes imposition and recovery of a tax on betting and gaming) together with sections 29A and 55A, the court construed the Act purposively and contextually. The Petitioner produced a Tax Compliance Certificate but no proof of withholding tax payment for January to May 2019; the assault on the decision on this ground therefore failed.

p. 14
02

Whether the Respondent failed to give reasons

Holding

No - the Petitioner knew the reasons (non-compliance with withholding tax) and section 5(3) permits refusal without reasons

Reasoning

The court held the Petitioner was aware of the reasons from the correspondence and its own Petition, and that no prejudice was shown since it had already filed the Petition. Section 5(3) gives statutory backing to refusal without reasons, and details of intelligence and security investigations are exempt from disclosure under section 6 of the Access to Information Act.

p. 16
03

Whether the decision was ultra vires

Holding

No - the decision conformed with the enabling statute

Reasoning

Applying the doctrine of legality and the CCSU classification of review grounds, the court found the Board was empowered to conduct due diligence and refuse a licence where conditions were unmet. The Petitioner did not demonstrate that the Respondent acted outside its statutory powers.

p. 19
04

Whether legitimate expectation was violated

Holding

No - statutory requirements override any expectation of automatic renewal

Reasoning

The court applied the two-step legitimate expectation test and the requirement that any representation be clear, lawful and devoid of relevant qualification. Holding prior licences cannot create an expectation of automatic renewal where statutory conditions, including payment of withholding tax, were not met.

p. 21
05

Whether the right to be heard was violated

Holding

No - a licence application stands or falls on set statutory requirements and does not require a hearing

Reasoning

Distinguishing Article 47 fair administrative action from the Article 50 fair hearing right, the court held that processing a licence application against prescribed requirements is an administrative exercise that does not demand an oral hearing, which would be impractical for each applicant.

p. 24
06

Whether section 5(3) is unconstitutional

Holding

No - it passes the proportionality test under Article 24

Reasoning

The court applied the rational-connection and proportionality analyses, finding the objective (regulating licensing and protecting intelligence/security information exempt under section 6 of the Access to Information Act) sufficiently important, rationally connected, and fairly balanced against the private right to reasons.

p. 30
07

Whether the second and third Respondents are improperly joined

Holding

Yes - section 3(12) shields officers acting in good faith from personal liability

Reasoning

The court construed section 3(12) as mandatory ('shall') and held that no bad faith was alleged or demonstrated against the Acting Director and Chairman, rendering the suit against them unsustainable.

p. 28
08

Whether the right to property under Article 40 was violated

Holding

No - refusal to grant a licence is not an unjustifiable interference with property rights

Reasoning

Applying the five-part interference test, the court held that the licence is issued subject to statutory conditions and failure to meet them led to refusal; the licensing body cannot be accused of violating property rights in those circumstances.

p. 31

Legal principles established

#
  • Proof of payment of taxes arising from gaming and betting business is a material and relevant consideration, and a requirement, in determining whether to grant or refuse a licence under the Betting, Lotteries and Gaming Act
  • The doctrine of legitimate expectation cannot operate against clear provisions of a statute
  • Section 5(3) of the Act, permitting refusal of a licence without reasons, is constitutionally valid; the limitation satisfies the proportionality test
  • Consideration of a licence application on documents against set statutory requirements does not require an oral hearing
  • Under section 3(12) of the Act, Board members, officers and servants acting in good faith cannot be personally sued

Court orders

#
  1. 1.Dismissal of the Petition dated 11th July 2019 in its entirety
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 20, 21, 22, 23, 24, 35, 40, 47, 50, 159, 165(3)(d), 209, 210, 259
  • Betting, Lotteries and Gaming ActCap 131, sections 3, 4, 5, 5A, 9, 29A, 55A
  • Fair Administrative Action ActAct No. 4 of 2015, section 4(2), 4(3)(a), 4(3)(b)
  • Access to Information ActAct No. 31 of 2016, section 6
  • Companies ActAct No. 17 of 2015
  • Income Tax ActCap 470, sections 73, 92(a)
  • Betting, Lotteries and Gaming Regulationssection 4(1)(a)
  • Kenya Revenue Authority Actappointment of Commissioner-General (definition of 'Collector')

Cases cited (48)

  • R. v. Somerset County Council, ex parte Fewings
    {1995} 1 W.L.R. 1037

    Three categories of relevant considerations for decision-makers

  • City Developments Ltd. v. Chief Assessor
    {2008} 4 S.L.R.(R.)

    Courts reluctant to intervene where wide range of considerations or satisfaction-based powers

  • R. v. Boundary Commission for England, ex parte Foot
    {1983} Q.B. 600

    Weighing relevant considerations is for the decision-maker, not courts

  • Tesco Stores Ltd. v. Secretary of State for the Environment
    {1995} 1 W.L.R. 759

    Distinction between materiality of a consideration (law) and its weight (judgment)

  • Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
    {2004} ZACC 15; 2004 (4) SA 490 (CC)

    Constitutionally mandated contextual/purposive statutory interpretation

  • Stopforth v Minister of Justice and Others; Veenendaal v Minister of Justice and Others
    {1999} ZASCA 72; 2000 (1) SA 113 (SCA)

    Guidelines for purposive interpretation of statutory provisions

  • Republic v Speaker of the Senate & Another ex parte Afrison Export Import Limited & Another
    {2018} eKLR

    Law as the bedrock of a nation (quoting Baroness Helena Kennedy QC)

  • Masinga vs Director of Public Prosecutions and Others
    {2011} SZHC 58

    Source of the Helena Kennedy quotation on law

  • Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others
    {2016} eKLR

    Right to written reasons for administrative action under section 4(2) FAA Act

  • Republic v Kenya Ports Authority Ex parte Alice Wamaitha Mwangi
    {2016} eKLR

    Legitimate expectation from long licensing; cited by Petitioner, distinguished

  • AAA Investments (Pty) Ltd v Micro Finance Regulatory Council
    {2006} ZACC 9; 2007 (1) SA 343 (CC)

    Doctrine of legality - public power must be sourced in law

  • Council of Civil Service Unions v. Minister for the Civil Service
    {1985} AC 374

    Threefold classification of judicial review grounds: illegality, irrationality, procedural impropriety

  • Republic vs National Water Conservation & Pipeline Corporation & 11 Others
    {2015} eKLR

    Judicial review court should down its tools absent illegality, irrationality or procedural impropriety

  • National Director of Public Prosecutions v Philips
    2002 (4) SA 60 (W)

    Requirements for a legitimate expectation

  • Republic v Baringo County Government & another; Stephen K. Cheptoo & 8 others (Ex Parte Applicants)
    {2018} eKLR

    Cited R v Devon County ex parte P. Baker on legitimate expectation

  • R v Devon County ex parte P. Baker
    {1995} ALL ER

    Interest protected by procedural fairness is the substance of expectation

  • Lalji Karsan Rabadia & 2 Others v Commercial Bank of Africa Limited
    {2015} eKLR

    Court will not rewrite a contract made by parties

  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd
    {2017} eKLR

    Court cannot rewrite contracts voluntarily entered into

  • Civil Service v Minister for Civil Service
    {1984} ALL ER 935

    Opportunity to be heard before thwarting legitimate expectation (Lord Diplock)

  • Local Government Board v. Arlidge
    {1915} AC 120

    Decision-makers must act judicially and without bias

  • J.S.C. vs Mbalu Mutava
    {2015} eKLR

    Article 47 fair administrative action is distinct from Article 50 fair hearing

  • Kemp and Others v Wyk and Others
    (335/2004) [2005] ZASCA 77

    Official may exercise discretion in accordance with existing policy

  • President of the Republic of South Africa & Others vs M & G Media Limited
    CCT 03/11 {2011} ZACC 32

    Evidentiary burden of justifying refusal of access to information rests on the holder

  • Durban City Council v Association of Building Societies
    1942 AD 27

    Tests for granting declaratory relief

  • Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
    2005 (6) SA 205 (SCA)

    Confirmation of tests for declaratory relief

  • Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
    [1948] 1 KB 223

    Wednesbury unreasonableness standard

  • R v Oakes
    [1986] 1 SCR 103

    Two-criteria proportionality test for justified limitations of rights

  • State of Orissa vs. Sudhansu Sekhar Misra
    MANU/SC/0047/1967

    A decision is only an authority for what it actually decides

  • Roncarelli v Duplessis
    {1959} 16 D.L.R. (2nd) 689

    Cancellation of liquor licence as abuse of power for improper purpose

  • Prince George (City of) v Payne
    {1978} 1 S.C.R. 458

    Licensing power cannot prohibit lawful businesses of which authority disapproves

  • R. v Derbyshire CC Ex p. The Times Supplement Ltd
    {1991} C.O.D. 129

    Bad faith in exercise of council power

  • McInnes v. Onslow-Fane
    [1978] 3 All ER 211

    Distinction between application, legitimate expectation and forfeiture cases for procedural protection

  • Kioa v West
    (1985)

    Natural justice principles apply irrespective of statutory provision

  • Puhlhofer v Hillingdon London Borough Council
    [1986] 1 AC 484

    Decision must verge on absurdity to be vitiated for unreasonableness

  • Bromley London Borough Council vs Greater London Council
    {1983} 1 AC 768

    Decision devoid of plausible justification standard

  • Prasad v Minister for Immigration
    {1985} 6 FCR 155

    'Something overwhelming' required to prove unreasonableness

  • African Christian Democratic Party v Electoral Commission and Others
    {2006} ZACC 1

    Purposive approach to statutory interpretation

  • Daniels v Campbell NO and Others
    {2004} ZACC 14

    Purposive approach to statutory interpretation

  • Jaga v Dönges NO and Another; Bhana v Dönges NO and Another
    1950 (4) SA 653 (A)

    Importance of context in statutory interpretation (Schreiner JA)

  • Dawood and Another v Minister for Home Affairs and Others
    {2000} ZACC 8

    Contextual interpretation must accord with rule of law

  • R v Secretary of State for Home Department ex. p. Brind
    {1991} AC 696

    Proportionality test rejected but not ruled out for the future

  • R v. Secretary of State for the Home Department, ex parte Doody
    [1994] 1 AC 531

    Fairness demands depend on context of the decision

  • R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd
    {1995} 1 All ER 129

    Whether decision-maker struck a balance fairly and reasonably open to him

  • Charanjit Lal Chowdhury Vs. the Union of India and others
    AIR 1951 SC 41

    Presumption of constitutionality shifts burden to the attacker

  • Behn v Hauptzollamt Itzehoe
    Case C-80/89, 1990 E.C.R. I-2659

    Legal certainty underlying legitimate expectation doctrine

  • Deutsche Milchkontor GmbH et al. V Germany
    Joined Cases 205-215/82, 1983 E.C.R. 2633

    Expectation of unlawful conduct cannot be legitimate

  • Smith v East Elloe RDC
    {1986} A.C. 736

    Personal animosity may disqualify an adjudicator

  • Natural Resources Defense Council, Inc. v. United States EPA
    966 F.2d 1292 (9th Cir. 1992)

    Arbitrary and capricious standard of review

Jurisdiction invoked
Article 165(3)(d) of the Constitution (enforcement of Bill of Rights; Petition anchored on Articles 2, 3, 10, 20, 21, 22, 23, 40, 47, 50, 159, 165(3)(d) and 259)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Petitioner (limited liability company carrying on betting and gaming business) v Betting Control and Licensing Board & 2 Others; Interested Party (telecommunications company)", Case Analysis (2019). Constitutional Petition No 271 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/4631/eng@2019-08-30

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