[2022] KEHC 11558 (KLR)

Coast Water Works Development Agency v Commissioner, Investigations and Enforcement & another; Consolidated Bank of Kenya Ltd & another (Interested Parties) (Petition 2 of 2022) [2022] KEHC 11558 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11558 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition 2 of 2022

JM Mativo, J

May 18, 2022

Between

Coast Water Works Development Agency

Petitioner

and

Commissioner, Investigations and Enforcement

1st Respondent

Robertson Otwane t/a Tersa Trading Enterprises

2nd Respondent

and

Consolidated Bank of Kenya Ltd

Interested Party

Tersa Trading Enterprises Ltd

Interested Party

Judgment

1. The facts which triggered these proceedings as I glean them from the Petitioner’s Petition dated 20th January 2022 are on 5th of March, 2020, the Petitioner, namely, Coast Water Works Development Agency, (a parastatal (Government Owned and Autonomous) body created under the Water Act), was served with an Agency Notice by the 1st Respondent, the Commissioner, Investigations and Enforcement, an office established under section 13 of the Kenya Revenue Authority Act (the KRA act).

2. The Agency Notice issued under section 42 of the {{>/akn/ke/act/2015/29 Tax Procedures Act} (TPA) required the Petitioner to with immediate effect transfer Kshs. 13,390,358/= held by it or owed to the 2nd Respondent to its bank accounts at the Central Bank VAT Main Collection Account. The Petitioner states that on the 10th of June, 2021, it was served with yet another Agency Notice under section 41 of the TPA demanding that it pays to the 1st Respondent monies held by it or owed to the 2nd Respondent amounting to Kshs. 14, 569,865/= being taxes due from 2nd Respondent. The Petitioner states that it explained to the 1st Respondent its inability to honour the notices vide a letter dated the 12th of August, 2021. It contends that contrary to section 42(6) (7) of the TPA, the 1st Respondent did not reply to the request but it instead, it issued another agency notice dated the 13th of October, 2021 demanding payment, and communicating that the burden of paying the taxes had shifted to the Petitioner.

3. The Petitioner states that there was a confusion on the citation of the correct taxpayer between the 2nd Respondent and the 2nd Interested Party and this confusion was communicated to the 1st Respondent vide a letter dated the 9th December, 2021. It states that before it could furnish a response, it was notified by its bank of a debit notice against its Consolidated Bank Account No. 10081202000618 for Kshs. 14,569,865/= without any notification and/or confirmation with the Petitioner as to the nature of the account to attach.

4. It states that the only communication from the 1st Respondent was a letter dated the 14th of January, 2022 advising it to treat the Agency Notice dated the 10th of June, 2022 as having been suspended. It avers that the 1st Respondent’s actions are unconstitutional, illegal, reckless and unprocedural and it violates the law governing the use and management of public funds. It avers that the targeted account is a designated account handling funds from the Equalisation Fund established under Article 204 of the Constitution, so, targeting the said account is an illegal and wrongful exercise of the discretionary powers granted to the 1st Respondent by Section 42 of the TPA. The Petitioner avers that the said account was opened with express authority from the National Treasury for purposes of holding funds from the Equalization Fund. It avers that the 1st Respondent actions offends the Constitution, the Public Finance Management Act (PFMA), Article 10, 21, 27, 47 & 73 of the Constitution and if unchecked, it will impact on the Petitioners functions. As a consequence, the Petitioner prays for: -a.A declaration that the 1st Respondents actions violates the Constitution and are therefore null and void ab initio.b.An order compelling the 1st Respondent to credit into the Petitioner’s Consolidated bank Account Number: 10081202000618 the withdrawn funds amounting to Kshs. 14,569,865/= belonging to the Equalization Fund under Article 204 of the Constitution of Kenya 2010. c.An order quashing the agency notices dated the 5th of March, 2020, 10th of June 2021 and 31st of October, 2021 issued by the 1st Respondent to the Petitioner and 1st Interested parties in respect of Monies and/or accounts held by the Petitioner.d.Such further orders and directions be issued to facilitate just, expeditious and fair determination of this application and the petition.

5. The 1st Respondent’s opposition to the Petition is contained in the Replying affidavit of Martin Gichango dated 24th February 2022; an officer appointed under section 13 of the KRA Act working in the enforcement department. The salient grounds in opposition to the Petition are that the Petitioner is on a mission to cover their acts in order to obtain a relief from this court; and that the demand Notice was issued as a consequence of default.

6. It is the 1st Respondent’s case that the 2nd Respondent failed to respond, so it collected the taxes through the 2nd Respondent’s Bankers by invoking section 42 of the TPA by issuing Agency Notices to the Petitioner on 5th March 2020, 10th June 2021, 13th October 2021 and 22nd October 2021 because it was evident from the previous Withholding Certificates that the Petitioner had made payments and withheld taxes upon making payment to the 2nd Respondent.

7. It is also the 1st Respondent’s case that under section 42(6) of the TPA, the agent is required to notify the Commissioner in writing within 7 days of receiving the notice, setting out the reasons for the agent’s inability to comply, but, the Petitioner failed to do so, but paid the 2nd Respondent Kshs.8,276,760/= and Kshs.8,276,760/= on 16th August 2021 while the Agency Notice issued on 10th June 2021 was still in force.

8. The 1st Respondent states that following the Petitioner’s defiance, it invoked section 42(13) of the TPA and wrote to the Petitioner on 13th October 2021 notifying them that the burden of the 2nd Respondent had shifted to the Petitioner, and, after the Petitioner and the 2nd Respondent failing to respond, the 1st Respondent proceeded to issue Agency Notices to the Petitioner’s Bankers on 22nd October 2021 to pay the Kshs.14, 569,865/= and notified the Petitioner of the same. It is the Petitioner’s case that in a bid to resolve the matter, the Petitioner vide a letter dated 27th October 2021 committed to enforce the agency notice by remitting to the 1st Respondent KShs.7,922,872/= which was due and payable by 30th November 2021 and all future payments until the matter is settled, but, the Petitioner reneged and declined to honour their commitment prompting the 1st Respondent to invoke section 42(13) of the TPA requiring the Petitioner’s Bankers to settle the outstanding amount.

9. It is the 1st Respondent’s position that the Petitioner is not exempted from being appointed an agent under section 42 of the TPA, and once the Agency Notice is issued, the Petitioner and its Banker have a duty to notify the 1st Respondent of their ability or inability to comply with the notices. Also, the Agency notices did not specify the targeted account. Additionally, it states that the Equalization fund is a creation of the Constitution under Article 204, and, that, the funds the Petitioner is referring to as Equalization Funds are either grants or funds which have already received approval from the National Government for funding the projects and what requires appropriation by the Parliament is the withdrawal of funds by the National Government from the Equalization Fund which accords with section 18 of the PFMA.

10. It is the 1st Respondents position is that it was the Petitioner’s responsibility to advice their Bankers if there was any reason that the funds in a particular account ought not to have been paid out. Further, that the Petitioner having defied the express provisions of the law, it became personally liable under section 42(13) of the TPA and that the Petitioner has not discharged its burden of proof by demonstrating that the wrong account was attached.

11. The 1st Respondent states that the orders sought cannot issue because the Respondent vide a letter dated 14th January 2022 suspended the agency notices, so, the orders sought are moot. It also states that Article 201 (b) (i) provides that the burden of taxation ought to be shared equitably; and that the Petitioner has not approached this court with clean hands having openly facilitated the payments; and that this Petition lacks merit and it is merely aimed at subverting the course of justice.

12. The 2nd Respondent, Robertson Otwane T/A Tersa Enterprises Limited filed the Replying affidavit dated 16th February 2022. The nub of the affidavit is that on 4th November 2021 they notified the 1st Respondent about the demand notice for Kshs. 14. 9 million and pointed out erroneous transactions posted by his accountant instead of Kshs. 3,846,946. 24 and requested he be subjected to a repayment plan and the cancellation of tax pin A003097543T which had erroneously shown that he had received payments from the Petitioner as reflected in the withholding certificate dated 9th September 2021 showing that Kshs 8,276,760/= had been paid to him and the tax of Kshs. 248,303/=. He denied knowledge of contracts for Kshs. 7,922,872/= or doing business with the Petitioner and he had objected to the tax estimate but his appeal was dismissed in TAT No. 109 of 2020.

13. The Petitioner filed the further affidavit dated 17th February 2022 sworn by Martin Tsuma, its Chief Executive Officer. He averred that Article 204 is purpose specific and it does not envisage a statutory exception.

14. The Interested Parties did not file any responses to the Petition nor did they participate in these proceedings.

15. Both parties filed written submissions which they highlighted orally in court. The Petitioner cited Muslims for Human Rights (MUHURI) & Another v Inspector General of Police & 5 others{{ which underscored the supremacy of the rule of law and wondered whether section 42 of the TPA empowers the 1st Respondent to attach funds of a tax agent notwithstanding the nature and purpose of the funds. It submitted that in attaching the said funds, the 1st Respondent acted beyond its powers and in blatant breach of the Constitution because it attached funds set aside by a Constitutional decree for a specific function and drawn from a specific account birthed by Article 204 of the Constitution.

16. The Petitioner argued that the 1st Respondent is not permitted in law to issue agency notices and subsequently attach funds set for specific purposes by Article 204 of the Constitution as read with Section 18 of the PFMA. The Petitioner submitted that Article 204 provides for allocation, management and withdrawal procedures and provides the purpose of the fund. It argued that Article 204 (9) provides that money shall not be withdrawn from the Equalization Fund unless the Controller of Budget has approved the withdrawal.

17. The Petitioner submitted that section 18(1) of the PFMA mandates the National Treasury to manage the Equalization Fund while section 18(4) requires authorization by an appropriation Act of Parliament, and the National Treasury is required to make a requisition for the Withdrawal and submit it to the Controller of Budget for approval. It argued that it is only on the approval of the Controller of Budget, together with written instructions from the National Treasury requesting for the withdrawal, that the Central Bank of Kenya Can pay amounts from the Equalization fund in accordance with the written instructions. It submitted that the purpose of the funds is limited to the objectives of Article 204(2), so, the 1st Respondent had no authority to withdraw the funds to settling a tax obligation of a private citizen. It submitted that the Agency Notices and the attachment of the funds was illegal for want of approval by the Controller of Budget so it violated Article 204 and section 18 of the PFMA and it contravenes section 21(4) of the Government Proceedings Act.

18. The Petitioner cited Republic v Kenya Revenue Authority and 5 others and Nairobi City County Government-Ex-parte Applicant{{^ in support of the proposition that Article 207 of the Constitution and section 109 of the PFMA shows that recovery of taxes through agency notices issued by KRA under the TPA are not contemplated as one of the means of withdrawing money from the County Revenue Fund or County Exchequer Account and if executed, the agency notices would bypass or sidestep the procedures by the Constitution and the PFMA. As a consequent, the Petitioner argued that the attachment was illegal.

19. Equating enforcement of Agency Notices with execution proceedings, the Petitioner cited section 21(4) of the Government Proceedings Act and argued that it grants immunity to state agencies, departments and ministries from execution by way of attachment of their assets so as to safeguard the funds and property of government. (Citing Kisya Investments Ltd vs Attorney General & Another

20. The Petitioner submitted that the 1st Respondent is required to exercise its administrative functions in strict adherence to procedural propriety and without violating the legitimate expectation of the affected person. It submitted that the 1st Respondent’s decision was reckless, without due regard to the status of the Petitioner as a state agency and in violation of Article 47 to the extent that it was procedurally unfair. It argued that the impugned decision offends section 42 of the TPA and Section 41(5) for failing to specify the date the payment is to be made and for ignoring the Petitioner’s letter dated the 12th of August, 2021 in which the Petitioner, in compliance with section 42(6) provided reasons for not being able to comply with the agency notices. It argued that the 1st Respondent violated the provisions section 4 (3) (a) & (b) of the Fair Administrative Action Actin that it was not provided with reasons or an opportunity to be heard. It cited Judicial Service Commission v Hon. Mr. Justice Mbalu Mutava & Another which underscored the import of Article 47 in administrative justice in that it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights.

21. The 1st Respondent submitted that enforcement of Tax Statutes is a necessary tool to enforce the power of the State to impose taxes and charges as stipulated in Article 209 of the Constitution. It cited Article 210 which provides that no tax or licensing fee may be imposed, waived or varied except as provided by legislation. It submitted that whereas enforcement of Tax Statues can have an impact on constitutionally guaranteed rights, the litmus test is whether such limitation will pass constitutional muster. It argued that Tax statutes must be understood purposively because the Tax laws are umbilically linked to the Constitution and that the court must seek to promote the spirit, purpose and objects of the Articles 209 and 210 of the Constitution.

22. On its part, the 1st Respondent submitted that is has a statutory mandate to assess and enforce collection of the taxes and this power is enshrined in the same constitution and statutes it is being accused of violating. It argued that the TPA lays out the procedures and ways the 1st Respondent can apply to enforce collection of taxes. Reference was made to section 42 (2) of the TPA which empowers it to appoint a person as an agent for purpose of Tax Collection, pursuant to which the Petitioner was appointed as an agent and an Agency Notice was issued on 10th June 2021 in respect of the 2nd Respondent to whom it owed money.

23. It submitted that it notified the Petitioner that the 2nd Respondent was owing taxes to the tune on Kshs.14,569,865/= and that they should remit any moneys they are holding on behalf of the 2nd Respondent. It submitted that the Petitioner had the responsibility in accordance with section 42 (6) of the TPA to notify the 1st Respondent of its ability or inability to comply with the same, but it blatantly disregarded the agency notices and proceeded to pay the 2nd Respondent Kshs.8,276,760 and Kshs.8,276,760 on 16th August 2021 when the agency notice issued on 10th June 2021 was still in force. It argued that the Petitioner having contravened section 42(13) of the TPA, they bound themselves to be personally liable for taxes which ought to have been paid by the 2nd Respondent as provided in section 42 (13) of the TPA.

24. The 1st Respondent submitted that following the default, it notified the Petitioner that the 2nd Respondent’s burden had since shifted to it and following the Petitioners failure to reply, the it took enforcement action. It argued that the Petitioner vide a letter dated 27th October 2021 committed to enforce the agency notice by remitting to the 1st Respondent the outstanding payment of Kshs.7, 922,872/= which was due and payable by 30th November 2021 to the 2nd Respondent and all future payments until the matter is settled. It submitted that the 1stRespondent agreed and indulged the Petitioner, but it reneged and declined to honour its commitment prompting the 1st Respondent to invoke section 42(13) of the TPA..

25. The 1st Respondent submitted that it acted in good faith and in accordance with the law. It submitted that Section 42 (2) of the TPA does not exempt anyone from being appointed as an agent. Regarding the argument that the 1st Respondent attached the equalization fund, it submitted that the funds referred to are either grants or funds which have already received approval from the National Government for funding the projects and once the funds are approved by the Parliament and disbursed to the marginalised groups, the same have already received approval for the various projects and they are ready for use. To buttress its argument, it cited section 18 of the PFMA. It argued that suppliers of goods and services are paid from operations account, so it is subject to the provisions of section 42 of the TPA. It submitted that section 42 (10) of the TPA does not protect the Petitioner and that the Petitioner and its bank were required to notify the 1st Respondent of their ability or inability to comply with the notices in accordance with section 42(6) of the TPA. The 1st Respondent also submitted that section 42 of the TPA is self-executing so the Petitioner is the author of its own misfortune having failed to comply with Section 42 of the TPA and for failing to advise the nature of the account.

26. Regarding the reliefs sought, the 1st Respondent submitted that certiorari cannot issue as there is no averment of bad faith or ulterior motive on its part and cited Kenya National Examination Council v Republic Ex-Parte Geoffrey Gathenji Njoroge & 9 others which held that certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.

27. A useful starting point as a prelude to determining the issues at hand is to mention that the TPA contains innovative tax administration strategies geared to ensuring that tax collection occurs in an orderly, structured, efficient and effective way. The features characterize a credible tax system. They advance the cultivation of a tax compliance culture that, if realized, will foster enhanced tax collection beneficial to the treasury and, thus, the public purse. The promotion of tax compliance is a central value of the TPA.See Moosa, " Tax Administration Act: Fulfilling human rights through efficient and effective tax administration" Vol 1 [2018] De Jure 2 at Section 2.

28. The TPA (AN ACT of Parliament to harmonize and consolidate the procedural rules for the administration of tax laws in Kenya, and for connected proposes ) constitutes a lawful enforcement mechanism for the achievement of its purpose. The Act as a whole and, in particular, its provisions relating to assessments, payment recovery and refund of tax provisions are indispensable tools for the prompt collection of tax due. From an economic point of view, the provisions of the Act are meant to ensure a steady, accurate and predictable stream of revenue for the fiscus. These provisions are an embodiment of the principle “Pay Now Argue Later”, suggesting that an appeal would not have the effect of suspending payment. The principle is aimed at discouraging frivolous or spurious objections and ensures that the whole system of tax collection in the country maintains its efficacy. This serves the fundamental public purpose of ensuring that the fiscus is not prejudiced by delay in obtaining finality in any dispute.

29. The statutory provisions should always be interpreted purposively; the relevant statutory provision must be properly contextualized; and -all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity.

30. The KRA is empowered to administer and collect tax in Kenya. In order to enable the KRA to effectively discharge its duty to collect taxes, it is afforded extensive legal and administrative powers by the legislature to effect the efficient and timeous collection of taxes. One of these powers is the ability to appoint a third-party agent on behalf of the taxpayer. The jurisdictional element is that the tax must be payable before the Commissioner can invoke the said procedure. When that element exists the Commissioner can rely on Section 42 of the TPA and recover an amount which he certifies as (already) due or payable.

31. The sharp end of the tax collection system is section 42 of the Act entitled “Power to collect tax from person owing money to a taxpayer.” This provision allows the appointment of an agent. In a proper and logical construction of the provision, payment by the agent is by means of a garnishee against any account to the taxpayer’s credit held with the agent. In any event, under the law, tax consists of monies that have been taxed on goods and services paid by consumers for onward transmission to the Commissioner. Furthermore, if effective tax collection tools such as garnishees are not imposed, the state will not be able to collect the required revenue to sustain the economy and to provide essential services. There is no contest that the law permits KRA to appoint agents for the payment of tax due from a tax payer and this being the correct legal position, I find no basis to fault the KRA for issuing the Agency Notices.

32. The appointment of a third party for purposes of tax collection is provided for by section 42 of the TPA. Third party appointment essentially entails that a person who holds any money on behalf of, or due to, a taxpayer can be required to pay this money over to the KRA in satisfaction of the taxpayer’s debt to ensure the effective and speedy collection of taxes. The power to appoint a third party is a tool which the KRA will definitely use more frequently. It is thus clear that the appointment of a third party is an important tool to collect taxes. KRA’s duty to collect taxes, however, does not exist in isolation. The taxpayer’s constitutional rights must be taken into consideration. These rights include the right of access to the courts, and a fair administrative action, which forms the focus of Article 47. It must also be borne in mind that the taxpayer’sconstitutional rights are not absolute. This means that the taxpayer’s rights may be limited provided that the limitation is reasonable and justifiable. A balance must be struck between KRA’s duty to collect tax on the one hand, and the taxpayer’s and the third party’s constitutional rights on the other.

33. The agent is required to pay over to KRA money held by such agent on behalf of the taxpayer or money owed to the taxpayer by such agent. On a practical level, this could entail that a bank or any other institution (be it a financial institution or not) that is holding money on behalf of the taxpayer, can be required to pay money over to KRA in order to satisfy the taxpayer’s debt. Furthermore, the appointed third party will be held personally liable to the extent that the third party holds funds on behalf of the taxpayer and fails to withhold and pay the money over to KRA as required in the Agency Notice. The third party must inform the KRA if it cannot comply with the terms set out in the notice together with reasons for such failure and this must be done within the period indicated in the appointment notice.

34. The power of appointing an agent under section is a drastic power and must be exercised with extreme care and caution.This power cannot be exercised unless there is sufficient material on record to justify that the bank holds money for and on behalf of the tax payer. The existence of money held on behalf of a tax payer is a pre-condition to the formation of an opinion by the Commissioner and issuance of the Notices. The 1st Respondents basis for appointing the Petitioner as an agent is that the commissioner was of the opinion that from previous withholding certificates that the Petitioners had made payments and withheld taxes upon making payment to the 2nd Respondent. From the material before me, there is nothing to suggest that the Petitioners are disputing this assertion. But on the other hand, the 1st Respondent admits suspending the Agency Notices.

35. The dispute turns on whether the money held in the Equalization Fund Account can be garnisheed to recover taxes due from a tax payer. This issue was addressed with sufficient clarity in Republic v Kenya Revenue Authority & others (Interested Parties) ex parte Nairobi City County Government (supra) cited by the Petitioner. At paragraphs 31 and 32 of the judgment, the learned judge stated: -“A reading of Article 207 of the Constitution and section 109 of PFMA shows that recovery of taxes through agency notices issued by KRA under the TPA are not contemplated as one of the means of withdrawing money from the County Revenue Fund of County Exchequer Account. If executed, the agency notices would by-pass or sidestep the procedures established by the Constitution and the PFMA.Another reason for shielding the County Revenue Fund from attachment by Agency Notices is that County expenditures are regulated by statute. The county’s budgetary process is provided in section 125 of the PFMA which gives specific timeliness to be followed in this process. Withdrawals made from the County’s Revenue Fund outside this procedure would not only curtail the County’s operations but would also be a violation of the Constitution and the law.”

36. The above reasoning accords with the provisions of Article 204 (9) of the Constitution which provides that: - Money shall not be withdrawn from the equalization Fund unless the Controller of Budget has approved the withdrawal. The word shall which connotes a absolute term has been used in the above article. The above Article is accentuated by section 18 of the PTMA which provides:The National Treasury to administer the Equalisation Fund(1)The National Treasury shall administer the Equalisation Fund in accordance with Article 204 of the Constitution.(2)The National Treasury shall keep the Equalisation Fund in a separate account maintained at the Central Bank of Kenya and shall—(a)transfer into that Equalisation Fund all revenues payable into the Fund under Article 204(1) of the Constitution; and(b)transfer from that Equalisation Fund, without undue delay, all money for purposes specified in Article 204(2) of the Constitution.(3)The National Treasury shall ensure that the Equalisation Fund Account is not overdrawn at any time.(4)Where a withdrawal from the Equalisation Fund is authorised under an Act of Parliament that approves the appropriation of money, the National Treasury shall make a requisition for the withdrawal and submit it to the Controller of Budget for approval.(5)The approval by the Controller of Budget of a withdrawal from the Equalisation Fund, together with written instructions from the National Treasury requesting for the withdrawal, shall be sufficient authority for the Central Bank of Kenya to pay amounts from the Equalisation Fund Account in accordance with the approval and instructions given.(6)Any unutilised balances in the Equalisation Fund shall not lapse at the end of the Financial year, but shall be retained for use for the purposes for which the Equalisation Fund was established.

37. With the above clear constitutional dictate backed by the above provisions of the PFMA and in particular section 18 (5) highlighted above, I find and hold that the withdrawal of the funds on the strength of the impugned Agency Notices is not one of the expenditures contemplated under the above provisions. Even if I were to hold that it falls within the permissible expenditure, then, the same offends Article 204 (9) section 18(5) of the PFMA which requires approval from the controller of budget.

38. All statutes must be read in a manner that conforms with the Constitution. While enacting the TPA in 2015, Parliament was already aware of Article 204 and the PFMA, 2015 so nothing prevented it from stating in clear terms that Agency Notices would be one of the permissible ways of withdrawing funds from the Equalization Fund. It never said so. If the law giver in its wisdom never said so, then the court has no business reading into a legislation word which are not in the statute.

39. The courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the Legislature. Where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external aid is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that the external aid may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

40. Courts are constrained by the language used, and in this case, the provisions of Article 204 of the Constitution and section 18 of the PFMA as read with the provisions of section 42 of the TPA and the need for statutory provisions to be reads in a manner that is consistent with the Constitution. Courts may not impose a meaning that the text is not reasonably capable of bearing. In other words, interpretation should not be “unduly strained.” It should avoid “excessive peering at the language to be interpreted.Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others vs. Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at para 24. Johannesburg Municipality vs. Gauteng Development Tribunal and Others [2009] ZASCA 106; 2010 (2) SA 554 (SCA) at para 39, which quoted Jaga v Dönges, N.O. and Another; Bhana v Dönges, N.O. and Another 1950 (4) SA 653 (A) at 664G-H.

41. From above discussion and the authority referred to above, the conclusion becomes inevitable that this Petition is merited. The upshot is that this Petition succeeds. I issue the following orders: -a.An order be and is hereby issued compelling the 1st Respondent to credit into the Petitioner’s Consolidated bank Account Number: 10081202000618 with Kshs. 14,569,865/= belonging to the Equalization Fund under Article 204 of the Constitution.b.An order be and is hereby issued quashing the agency notices dated the 5th of March, 2020, 10th of June 2021 and 31st of October, 2021 issued by the 1st Respondent to the Petitioner and the 1st Interested parties in respect of Monies and/or accounts held by the Petitioner.c.No orders as to costs.

Orders accordinglySIGNED, DATED AND DELIVERED AT MOMBASA THIS 18TH DAY OF MAY 2022JOHN M. MATIVOJUDGE