Marshine Settlement Limited v The Collector of Stamp Duties & 1 other

in execution of transactions of property situated in Kenya and listed under the Act’s Schedule attract Stamp Duty save for those specified under Section 117. 4. Section 106 provides for power of the Cabinet Secretary, on recommendations from the Cabinet Secretary responsible for lands, to exempt instruments. 5. The Act also provides for the procedure for application for exemption of stamp duty, adjudication under section 17 which allows for adjudication of instruments by the Collector of Stamp Duties. When adjudicating, the Collector will decide whether an instrument is chargeable with duty or not and if not chargeable a special stamp indicating that it is not chargeable has to be afixed on the instruments. 6. Section 18 of the Act provides for appeals to the High Court by any party who is aggrieved with the assessment of the collector. 7. Therefore, on the question of jurisdiction of which court to hear and determine appeals, the Act clearly stipulates that it is the High Court. As to whether the petitioner followed the process for application for exemption, shall be dealt with in the petition. 8. Section 2 of the Act on the other hand defines collector as follows: "collector" means the Kenya Revenue Authority established under the Kenya Revenue Authority Act (Cap. 469 while stamp and stamp duty are defined as: "duty" and stamp duty" mean any stamp duty for the time being chargeable by any written law. 9. Albeit Kenya Revenue Authority is the primary tax collector in this Country, it is important to note that effective from November 27, 2023, the responsibility for the collection of stamp duty on land transactions in Kenya was transferred from the Kenya Revenue Authority (KRA) to the Ministry of Lands and Physical Planning, through a joint public notice issued by KRA and the Ministry of Lands. 10. As to whether the Stamp Duty Act is a tax law, the Tax Appeals Tribunal in Mazeras Kenya Epz Limited v Commissioner of Domestic Taxes (Tax Appeal 827 of 2022) [2023] KETAT 985 (KLR) (15 September 2023) (Judgment) Neutral citation: [2023] KETAT 985 (KLR) held that: “ The Tribunal notes that the Stamp Duty Act is not a tax law as defined under Section 2 of the Tax Procedures Act and therefore any appeal(s) of the Collector’s decisions are not appealable decisions as envisaged under the Tax Appeals Tribunal Act and the Tax Procedures Act. 63. Invariably so, in the instant Appeal and pursuant to the provisions of Section 18 of the Stamp Duty Act, any appeal(s)emanating from the assessment of the Collector of the Stamp Duty are competently entertained before the High Court and the mode of recovery of such duties and penalties by the Collector from the payer of such duties is provided for under Section 29 of the Stamp Duty Act as civil debts recoverable summarily. 64. The Tribunal therefore finds that it is not seized of the jurisdiction to entertain this Appeal and the Tribunal must at this point down its tools.” 11. The above holding which I associate with is informed by the definition of tax laws under section 2 of the Tax Procedures Act as follows: “ tax law” means— (a) this Act; (b) the Income Tax Act, Value Added Tax Act, and Excise Duty Act, the Miscellaneous Fees and Levies Act, 2016; and (c) any Regulations or other subsidiary legislation made under this Act or the Income Tax Act, Value Added Tax Act, Excise Duty Act, and the Miscellaneous Fees and Levies Act, 2016;” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6701/eng@2026-04-21 2

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12. However, I must correct the impression that the High Court has exclusive jurisdiction to enforce violation of every right to fair administrative action as implemented by the Fair Administrative Action Act, even where the right relates to environment and land. 13. Section 9 of the Fair Administrative Action Act provides for the Procedure for judicial review as follows: (1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. (2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. (3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1). (4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. (5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal. 14. The Environment and Land Court (ELC) is a superior court with the same status as the High Court as stipulated in Article 162(1) of the Constitution and has jurisdiction to grant judicial review orders, such as certiorari and prohibition, regarding violations of Article 47 as implemented by the Fair Administrative Action Act (FAAA), where the administrative action directly relates to land, environment or associated planning matters. As a superior court of record with original as well as appellate jurisdiction, the ELC can review decisions made by bodies like the National Land Commission, rent tribunal, National Environment Management Authority among others. This statement is supported by the Court of Appeal decision in Whitehorse Investments Limited v Nairobi City County [2019] eKLR and the discussion by Nyamweya J in JR 100/2019 between The National Land Commission, The Chief Land Registrar and Kimasas Farmers Co-Operative Society vs County Government of Nandi Exparte: Eastern Produce Kenya Limited. 15. See also Judicial Review Application No. 35 Of 2017 Versus National Land Commission, Kiambu Dandora Farmers Limited Ex Parte: Prof. Kihumbu Thairu. 16. Additionally, Section 13 (7) of the Environment and Land Court Act provides: In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including— a. Interim or permanent preservation orders including injunctions; b. Prerogative orders; c. Award of damages; d. Compensation; e. Specific performance; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6701/eng@2026-04-21 3

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17. g. Restitution; h. Declaration; or i. Costs” It is important to note that prerogative orders is the traditional or common-law name for judicial review orders, which, in the Kenyan context, are constitutional remedies which the Court exercising judicial review or hearing a petition for violation of constitutional rights, including the right to fair administrative action as guaranteed under Article 47 of the Constitution can grant. This remedy is found at Article 23(3)(f) of the Constitution which provides that: In any proceedings brought under Article 22, a court may grant appropriate relief, including— 18. (a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review. Moreover, the Fair Administrative Action Act itself and as interpreted by superior courts, ends the monopolistic reign of the High Court as the only Court capable of granting judicial review remedies. Under section 7(1) of the Act on institution of proceedings: (1) (2) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to (a) a court in accordance with section 8; or (b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law. A court or tribunal under subsection (1) may review an administrative action or decision, if (a) the person who made the decision (i) was not authorized to do so by the empowering provision; (ii) (iii) (iv) (v) acted in excess of jurisdiction or power conferred under any written law; acted pursuant to delegated power in contravention of any law prohibiting such delegation; was biased or may reasonably be suspected of bias; or denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case; (b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with; (c) the action or decision was procedurally unfair; (d) the action or decision was materially infiuenced by an error of law; (e) the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant; (f) the administrator failed to take into account relevant considerations; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6701/eng@2026-04-21 4

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(3) (g) the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions; (h) the administrative action or decision was made in bad faith; (i) the administrative action or decision is not rationally connected to (i) the purpose for which it was taken; (ii) (iii) (iv) (j) the purpose of the empowering provision; the information before the administrator; or the reasons given for it by the administrator; there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law; (k) the administrative action or decision is unreasonable; (l) the administrative action or decision is not proportionate to the interests or rights affected; (m) the administrative action or decision violates the legitimate expectations of the person to whom it relates; ( n) t he administrative action or decision is unfair; or (o) the administrative action or decision is taken or made in abuse of power. The court or tribunal shall not consider an application for the review of an administrative action or decision premised on the ground of unreasonable delay unless the court is satisfied that (a) the administrator is under duty to act in relation to the matter in issue; (b) the action is required to be undertaken within a period specified under such law; (c) the administrator has refused, failed or neglected to take action within the prescribed period. 19. Therefore, although my finding in this case is that the issues relating to stamp duties are matters for the High Court, and whereas the party approaching the High Court challenging decisions of the Collector of Stamp Duties must adhere to the procedure stipulated in the Stamp Duty Act, it is not correct to say that because the Fair Administrative Action Act refers to the High Court, then only the High Court has such jurisdiction, even in matters purely relating to environment and land. 20. If it were to be the case that only the High Court has jurisdiction in implementing Article 47 and the Fair Administrative Action Act, then the Constitution at Article 165(5) (b) would not have barred the High Court from hearing and determining disputes exclusively reserved for the Court contemplated in Article 162(2), where such disputes are reserved for the Supreme Court, the Environment and Land Court and the Employment and Labour Relations. 21. The many decisions reviewed by this court show that courts of equal status exercise jurisdiction under Article 47 and the FAA depending on the subject matter. The said Courts also exercise jurisdiction under Article 165 where the subject matter relates to environment and land and or the Employment and Labour Relations as the case may be. See Mwangi & 2 others v National Land Commission & another (Environment & Land Petition 64 of 2018) [2023] KEELC 18244 (KLR) (22 June 2023) (Judgment) and Republic v Kaplamai Land Control Board & another; Gichuhi & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E005 of 2025) [2025] KEELC 7236 (KLR) (22 October 2025) (Judgment). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6701/eng@2026-04-21 5

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22. I can go on and on and on. I need not say more. The petition survives the first hurdle and will proceed to full hearing on its merits to allow the petitioner demonstrate that the reliefs sought are those that this court can grant under the applicable law. 23. The Court will now proceed to give directions on its disposal. 24. I so order. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF APRIL, 2026 R.E. ABURILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6701/eng@2026-04-21 6

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