Matindi v National Assembly & 4 others
The bottom line
#Kenya's Supreme Court upheld a tax exemption for Japanese firms under a Kenya-Japan financing deal, ruling the gazette notice needed no public participation.
What this practically means
#Executive summary
#Key legal issues
#Whether Legal Notice No. 15 of 2021 was a statutory instrument subject to public participation
The Legal Notice was administrative in nature, not a statutory instrument under section 2 of the Statutory Instruments Act, and not subject to public participation under section 5 of that Act.
The Court distinguished legislative from administrative character. The Notice merely informed the public of the implementation of bilateral Financing Agreements; the CS Treasury acted within delegated authority under section 13 of the Income Tax Act. It created no rule, order or regulation of wide application, so the procedure the appellant demanded was not triggered. The Court of Appeal's finding was affirmed.
Whether due process was adhered to in approving the Legal Notice
The necessary steps under section 13 of the Income Tax Act read with the Statutory Instruments Act were adhered to by the National Assembly.
The Notice was presented to the Committee on Delegated Legislation with an explanatory memorandum under section 11; the Committee met the CS under section 16, raised concerns about discrimination and the legal status of the agreements, and the CS explained the benefits outweighed the tax foregone. The report was tabled and adopted on 19th May 2021.
Whether the tax waiver was discriminatory
The discriminatory nature of the financing agreements was not specifically pleaded and the appellant did not prove his case on the balance of probabilities; the agreements, not the Notice, should have been challenged.
The burden lay on the appellant to prove discrimination on the balance of probabilities. The Notice contained no specific terms; the extent of the waivers would have been canvassed in a challenge to the bilateral agreements' terms, which the appellant had not seen. Hansard showed the exemptions were standard Japanese policy and the implementing body stated benefits outweighed the reliefs.
Jurisdiction under Article 163(4)(a)
The Court had jurisdiction because the dispute involved interpretation and application of Articles 10, 94, 95, 118 and 210 of the Constitution, central to both courts below.
Relying on Samuel Kamau Macharia and Lawrence Nduttu, the Court confirmed jurisdiction is conferred by the Constitution or legislation and that an appeal under Article 163(4)(a) must challenge the constitutional interpretation or application the Court of Appeal used to dispose of the matter.
Legal principles established
#- A statutory instrument has a legislative character if it varies or repeals general laws or rules of wide application affecting the public at large, and an executive or administrative character if it guides the implementation of standards in law and policy.
- A legal notice is a legislative document made under delegated authority and published in the Gazette through which binding rules, exemptions or other statutory measures are formally promulgated; a statutory instrument becomes effective once published as a legal notice.
- Tax exemptions can arise only from primary legislation enacted by Parliament, but Parliament may constitutionally delegate the administrative implementation of such exemptions to an executive authority.
- For Supreme Court appellate jurisdiction under Article 163(4)(a), the appeal must challenge the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter.
Court orders
#- 1.The Petition of Appeal dated 13th February 2025 and filed on 24th February 2025 lacks merit and is hereby dismissed
- 2.Each party shall bear its costs of the appeal
- 3.The sum deposited as security for costs upon lodging of this appeal be refunded to the depositor
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. E326 of 2023, as consolidated with Civil Appeal No. E330 of 2023
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matindi v National Assembly & 4 others", Case Analysis (2026). Petition E006 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/56/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.