[2014] KEELRC 1361 (KLR)
The court found that employers have a statutory and constitutional duty to provide employees with information regarding income tax deductions, specifically the P9A forms, upon request. The respondent's refusal to provide the forms was unjustified and led to unnecessary litigation. The court emphasized that such...
Source-derived case information.
- Citation
- [2014] KEELRC 1361 (KLR)
- Parties
- Applicant: David Kimani Kangea; Applicant: Kihiu Kamau; Applicant: Patrick Macharia Njogu; Applicant: John Kinyugo Kamau; Respondent: Geothermal Development Co. Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 8 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Motion for Provision of Tax Deduction Forms
- Outcome
- application allowed
- Judges
- MSA Makhandia
- Legal Topics
- Income Tax Deductions, Employer Statutory Duties, Employee Rights to Information
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kimani Kangea
Applicant
Kihiu Kamau
Applicant
Patrick Macharia Njogu
Applicant
John Kinyugo Kamau
Applicant
Geothermal Development Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion for Provision of Tax Deduction Forms
Legal Issues
- 1 Whether the employer is legally obligated to provide employees with P9A tax deduction forms upon request.
- 2 Whether refusal to provide such forms constitutes a breach of statutory or constitutional duty.
Ratio Decidendi
The court found that employers have a statutory and constitutional duty to provide employees with information regarding income tax deductions, specifically the P9A forms, upon request. The respondent's refusal to provide the forms was unjustified and led to unnecessary litigation. The court emphasized that such information should be readily available to employees for purposes of tax returns or refund applications, and the employer cannot lawfully refuse to provide it. The respondent was therefore ordered to provide the requested forms within three days of service of the court order.
Court Disposition
application allowed
Orders
- The respondent is ordered to provide the applicants with their P9A forms within 3 days of service of the court orders.
- Costs of the motion awarded to the applicants.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 8 OF 2012
(Originally Nairobi Cause No. 872 of 2012)
DAVID KIMANI KANGEA 1ST CLAIMANT
KIHIU KAMAU 2ND CLAIMANT
DAVID NJUGUNA MUIRURI 3RD CLAIMANT
JOHN CHEGE MUCHUHA 4TH CLAIMANT
PATRICK MACHARIA NJOGU 5TH CLAIMANT
JOHN KINYUGO KAMAU 6TH CLAIMANT
FRANCIS NJOROGE 7TH CLAIMANT
STEPHEN EKITELA ERI 8TH CLAIMANT
JOHN NGUGI KAHIA 9TH CLAIMANT
ARTHUR KAIRU GITAU 10 CLAIMANT
v
GEOTHERMAL DEVELOPMENT CO. LTD RESPONDENT
RULING
The Claimants filed a Statement of Claim against the Respondent on 24 May 2012 and the issues in dispute were stated as unfair and illegal termination and non payment of terminal dues.
The Respondent filed a Reply on 13 August 2012 and a Supplementary Reply on 25 April 2013.
After hearing the parties and considering submissions, Ongaya J delivered judgment on 7 June 2013. On 25 July 2013, the Respondent filed an application for review of the award and on 26 July 2013, consent on amounts to be paid to each Claimant was entered and the decretal sums paid less income tax and VAT which was remitted to Kenya Revenue Authority.
Despite the payments, the parties had a disagreement as a result of which the Claimants instructed auctioneers to execute. On 2 December 2013, the Respondent moved Court to stay the execution. Ongaya J gave a ruling on 20 December 2013 and ordered the Respondent to further pay some of the Claimants Kshs 681,836/58.
The Respondent was not satisfied with the ruling and on 14 February 2014, it filed an application for review of the ruling. The Claimants opposed the application and in a ruling delivered on 28 February 2014, the Court dismissed the review application.
The 1st, 2nd,5th and 6th Claimants being dissatisfied with the income tax deductions filed a Motion in Court on 1 August 2014 seeking an order directing the Respondent to provide them with P9A 2013 Tax deduction forms.
The basis of the application was that these Claimants believed that they had been excessively taxed, as deposed in the supporting affidavit of David Kangea (1st Claimant), and in an endeavour to seek refunds from Kenya Revenue Authority had been informed to make available Forms P9A for 2013. A request made to the Respondent through email/letter dated 14 March 2014 did not elicit any response.
This motion dated 1 August 2014 is the subject of this ruling. The motion was served upon the Respondent and an affidavit of service to that effect sworn on 8 August 2014 by Nelson Kisolei was filed in Court on the same day.
When the matter was called up for hearing on 8 October 2014, there was no representation for the Respondent. Being satisfied that the Respondent had been served, the Court allowed Mr. Koima to prosecute the application.
Mr. Koima submitted that the motion was not opposed and that he was relying on the grounds stated on the face of the motion and the supporting affidavit of David Kimani Kangea.
All persons who earn an income in Kenya are required to submit tax returns every financial year. Part of the process involves the employer preparing the tax return form, signing it and giving the form to the employee to make the returns. Similarly an employee who puts in a request for income tax return is required by the tax authority to get details of income taxes paid through the employer and submit the same together with the refund application.
Employers by law are agents of Kenya Revenue Authority in respect of Pay As You Earn from its employees income. The employer deducts and submits the tax together with the accompanying returns.
An employer who faces a request from an employee for the forms or returns whether for purposes of putting in a request for refund or for record purposes therefore cannot in law refuse to provide such information. Even without the constitutional right of access to information now provided for in Article 35 of the Constitution, an employer is under a statutory duty to provide the details of income tax deducted from an employee’s income to the employee on request.
The Respondent in refusing to provide the documentation/information to these Claimants has created litigation over a matter which should not be contentious. Precious judicial time has needlessly been engaged.
The Respondent is therefore ordered to provide these Claimants with their P9A forms within 3 days of service of the Court orders.
Costs of the motion to the Claimants.
Delivered, dated and signed in open Court in Nakuru on this 17th day of October 2014.
Radido Stephen
Judge
Appearances
For Claimants Mr.Koimainstructed by Kiplenge & Kurgat Advocates
For Respondent Kipkorir Tele & Kitur Advocates (did not appear at hearing of motion)