[2020] KEHC 9954 (KLR)
The court found that a stay of execution was warranted to preserve the subject matter of the appeal and prevent enforcement action that could render the appeal nugatory. However, the court also recognized the respondents' interest in securing the tax revenue. Balancing these interests, the court exercised its...
Source-derived case information.
- Citation
- [2020] KEHC 9954 (KLR)
- Parties
- Appellant: Leah Njeri Njiru; Respondent: Commissioner of Investigations and Enforcement; Respondent: Chief Manager, Debt Collection Enforcement and Enforcement, Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Tax Appeal E002 of 2020
- Procedural Posture
- Tax Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- DAS Majanja
- Legal Topics
- Stay of Execution, Tax Enforcement, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Njeri Njiru
Appellant
Commissioner of Investigations and Enforcement
Respondent
Chief Manager, Debt Collection Enforcement and Enforcement, Kenya Revenue Authority
Respondent
Procedural Posture
Tax Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the Tax Appeal Tribunal's decision pending appeal.
- 2 What conditions, if any, should be imposed for the grant of stay.
Ratio Decidendi
The court found that a stay of execution was warranted to preserve the subject matter of the appeal and prevent enforcement action that could render the appeal nugatory. However, the court also recognized the respondents' interest in securing the tax revenue. Balancing these interests, the court exercised its discretion to grant a conditional stay, requiring the appellant to provide a bank guarantee of Kshs. 2,000,000 within 30 days as adequate security. The court considered the proposals from both parties and determined that the amount ordered was reasonable in the circumstances, ensuring both the protection of the appellant's right to appeal and the respondent's interest in safeguarding...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- A stay of execution and further enforcement of taxes of the decision of the Tax Appeal Tribunal is granted pending the hearing and determination of the appeal on condition that the appellant provides a bank guarantee to the respondent from a suitable bank for Kshs. 2,000,000 within 30 days.
- The appellant shall file and serve its written submissions on the appeal within 14 days.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D.S. MAJANJA J.
TAX APPEAL NO. E002 OF 2020
BETWEEN
LEAH NJERI NJIRU ........................................................................APPELLANT
AND
COMMISSIONER OF INVESTIGATIONS
AND ENFORCEMENT ........................................................1ST RESPONDENT
CHIEF MANAGER, DEBT COLLECTION
ENFORCEMENT AND ENFORCEMENT
KENYA REVENUE AUTHORITY ................................. 2ND RESPONDENT
RULING
1. The application for consideration is the appellant’s Notice of Motion dated 22ndJanuary 2020. It is an application for stay pending appeal. The issue for determination is the nature and extent stay to be issued by the court as the parties have failed to agree on terms.
2. The Tax Appeal Tribunal allowed the appellant’s appeal partially and revised the appellant tax liability to Kshs. 18,006,461. 00 being the principal tax exclusive of interest and penalties to date. The result of this is that the respondents are likely to proceed with enforcement action pending this appeal.
3. I heard oral submissions from the parties. The respondents insist on payment of about 60% of the principal tax which amounts to Kshs 10 million while the appellant proposes to provide a bank guarantee of Kshs. 1. 8 million. Having considered the circumstances of the case and the situation obtaining, I now order as follows:
(a) A stay of execution and further enforcement of taxes of the decision of the Tax Appeal be and is hereby granted pending the hearing and determination of the appeal on condition that the appellant provides a bank guarantee to the respondent from a suitable bank for Kshs. 2,000,000. 00 within 30 days from the date hereof.
(b) As the record of appeal has been filed, the appellant shall file and serve its written submissions on the appeal within 14 days.
(c) The respondent may file supplementary submissions within 14 days.
(d) Mention on 20th August 2020 for directions and further orders.
DATEDandDELIVEREDatNAIROBIthis28th day of JULY 2020.
D. S. MAJANJA
JUDGE
Ms Ng’ethe instructed by Kiiru and Partners Advocates for the appellant.
Mr Said, Advocate instructed by Kenya Revenue Authority for the Commissioner of.
Investigations and Enforcement