https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7393

Origa v Commissioner General Kenya Revenue Authority & 2 others (Constitutional Petition E033 of 2025) [2026] KEHC 7393 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7393 (KLR) Republic of Kenya In the High Court at Kisumu Constitutional Petition E033 of 2025 A Mabeya, J May 29, 2026 Between Philemon Jos Origa Petitioner and Commissioner General Kenya Revenue Authority 1st Respondent The Commissioner of Domestic Taxes Kenya Revenue Authority 2nd Respondent The Attorney General 3rd Respondent Ruling 1.The applicant filed a petition dated 24/11/2025 against the respondents seeking declarations against them following receipt of a notice from the 1st respondent alleging non-filing of income tax returns. 2.Contemporaneous with the petition, the applicant moved the Court vide a Motion of even date in which he sought conservatory orders restraining the 1st and 2nd respondent or their agents from interfering with his eTIMS account pending the determination of the matter, as well as lifting the suspension placed on his eTIMS account and an order compelling the respondents to furnish him with information relating to the alleged Kshs.426,688,901,220/- eTIMS transactions. 3.The 1st & 2nd respondent filed a joint Notice of Preliminary Objection dated 15/12/2025 stating that the Court lacked the jurisdiction to entertain the suit in light of the provisions of Section 52 of the Tax Procedures Act, Section 12 of the Tax Appeals Tribunal Act and Sections 20 and 23(3) of the Access to Information Act, 2016. 4.On the 23/12/2025, the Court issued conservatory orders restraining the 1st and 2nd respondent from interfering with the petitioner’s eTIMS account as well as lifting the suspension placed on his eTIMS account pending the determination of the application. The Court then ordered that the Motion dated 24/11/2025 be disposed off by way of written submissions. 5.I have duly considered the submissions filed by both parties. As a preliminary issue, the Court has to determine whether it is clothed with the requisite jurisdiction to entertain the suit. 6.It is trite law that once a jurisdictional question is raised, it has to be determined immediately as it enables a court to know if it has ability to deal with the matter before it or not. As was held in Phoenix of E. A. Assurance Company v S M Thiga T/A Newspaper Services (2019) eKLR, ‘Jurisdiction” is the authority or power of the court to hear and determine disputes or even take cognizance of the same’. 7.The respondents submitted that pursuant to the provisions of Section 52 of the Tax Procedures Act, Section 12 of the Tax Appeals Tribunal Act, Sections 20 and 23(3) of the Access to Information Act, 2016, the Court was bereft of jurisdiction to handle the suit. In essence, the respondents contended that the suit violated the doctrine of exhaustion. 8.On his part, the petitioner advanced the case that the nature of his case was constitutional and not in regard to tax assessment, that the orders sought could not be granted by the Tax Appeals Tribunal and that the statutory provisions of the Tax Appeals Tribunal Act and Access to Information Act did not oust the jurisdiction of the Court. 9.The doctrine of exhaustion was dealt with by a 5-Judge Bench of this Court in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR wherein it was stated that: -“ 52.The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (I.EBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus: ‘42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words: ‘Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:‘It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews … The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution." 10.The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -“ 59.However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R vs Independent Electoral and Boundaries Commission (IEBC) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.) 60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. 61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR. 62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court." 11.In Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR, the Court of Appeal relied on an earlier decision in Speaker of National Assembly v Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. It observed as follows: -“ 23.For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialized Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.” 12.From the foregoing, the doctrine of exhaustion is a complete bar to the jurisdiction of a Court save in cases where any of the exceptions apply. 13.Applying the above to this matter, it is noteworthy that the Motion before this Court as well as the petition in which it is anchored, involves dissatisfaction with a notice alleging non-filing of income tax returns. It is for this reason that the petitioner sought an order to compel the 1st and 2nd respondent to give him information relating to their claim. 14.The Tax Procedures Act Section 52(1) & (2) provide as follows; -“(1)A taxpayer who wishes to dispute a tax decision shall first lodge an objection against that tax decision under this section before proceeding under any other written law.(2)A taxpayer who disputes a tax decision may lodge a notice of objection to the decision, in writing, with the Commissioner within thirty days of being notified of the decision. No 29 of 2015 Tax Procedures [Rev 2018] 40 (3) A notice of objection shall be treated as validly lodged by a taxpayer under Subsection." 15.Further, under the Fair Administrative Act, Section 9(2), the petitioner was under duty to exhaust other dispute resolution measures available to him before moving to the High Court as it has done. Section 9(2) of the Fair Administrative Act states as follows; -“The High Court or a subordinate court under Sub-section (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.” 16.The mandate of the 1st respondent which is clearly defined by law under the Section (5)(2) of the Kenya Revenue Act, Cap 469 laws of Kenya, among other things is to: -“(2)In the performance of its functions under Subsection (1), the Authority shall—(a)administer and enforce—(i)all provisions of the written laws set out in Part I of the First Schedule and for that purpose, to assess, collect and account for all revenues in accordance with those laws;(ii)the provisions of the written laws set out in Part II of the First Schedule relating to revenue and for that purpose to assess, collect and account for all revenues in accordance with those laws;” 17.Having established that the 1st respondent’s role in matters such as the one before Court is a statutory one, then one can only conclude that for it to be sued, the cause of action must relate to its mandate as set out in the law that has established it. Further, it is trite that parties must exhaust all available mechanisms in resolving disputes before moving to the High Court to avoid running afoul of the doctrine of exhaustion. 18.In Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR), it was held: -“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed”. 19.The petitioner contended that the reliefs sought were in relation to constitutional violation specifically Article 35 and 47 of the Constitution that relate to Access to Information and Fair Administrative Action, respectively. 20.As regards Access to Information, the mechanism for the exercise of this right is amplified and given effect by the Access to Information Act. Section 3(a) and (b) sets out its objects to include the following among others: -“a)Give effect to the right of access to information by citizens under Article 35 of the Constitution.b)Provide a framework for public entities and private bodies to proactively disclose information that they hold and provide the information on request in line with constitutional principles. 21.Under Section 8(1) of the Access to Information Act, applications are made in English or Kiswahili and the applicant is required to provide sufficient details for the public officer or any other official to understand what information is being requested. 22.In the present case, in so far as 1st and 2nd respondent are concerned, it is not in dispute that they received the letter of the petitioner seeking information. They neglected to act on the same. 23.Section 14 of the Access to Information Act, provides a mechanism for redressing the grievances relating to Access to Information. The section provides as follows: -“Review of decisions by commission. 14.(1)Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information: -a)a decision refusing to grant access to the information applied for;b)…c)…d)a decision to defer providing the access to information;…” 24.The commission referred to in Section 14 is the Commission on Administrative Justice as Section 2, provides that: -“Commission” means the commission on Administrative Justice established by Section 3 of the Commission on Administrative Justice Act (No. 23 of 2011).” 25.The refusal to supply the information sought by the petitioner was therefore reviewable by the Commission at the request of the petitioner in writing. The Petitioner did not seek the intervention of the Commission against the 1st respondent’s decision when it refused to supply the information requested. 26.It is apparent that there is an elaborate statutory channel through which the right of access to information is actualized and any grievances for the denial redressed before invoking this court’s jurisdiction. That was not exhausted by the petitioner. 27.The doctrine of exhaustion of reliefs is contained in Section 9 of the Fair Administrative Action Act which provides that: -“(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 subsection (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.” 28.In the present case, the petitioner has not sought exemption from the obligation to exhaust all other mechanisms under the above provision. 29.What is evident from foregoing is that litigants must exhaust local administrative remedies before invoking court jurisdiction, especially in constitutional issues. See the case of Masese & another v Speaker County Assembly of Kisii & 3 others; Mogire & 2 others (Interested Parties) [2025] KEELRC 919 (KLR). 30.It was contended that the Tax Appeals Tribunal could not grant the reliefs being sought in the petition. That may be so but this Court’s opinion is that, what the petitioner should have done was to first lodge an objection to the assessment in the normal manner as provided for in the Tax Laws and contemporaneously, seek the information he sought from the 1st respondent. The reasons for the objection should have been, amongst others, that there was no information on which the assessment was based and that he had sought that information from the relevant offices of the 1st respondent. That he would give the full reasons for the objection upon receipt of the expected information. 31.This Court opines that, if the petitioner had taken the foregoing route, the timelines set out in the Tax Laws on objections and objection decision by the Commissioner of Domestic Taxes would have stopped to run until the information sought was provided. If for any reason, the Commissioner of Domestic Taxes then proceeded to give his Objection Decision, the petitioner would have then had the right to come to this Court and seek the present reliefs without necessarily going to the Tax Appeals Tribunal which would not have the jurisdiction to grant these reliefs. 32.Further, I believe that the suit and application falls foul of the doctrine of Constitutional avoidance. The courts are not to deal with constitutional issues where those issues can be resolved under the other normal statutory provisions. Had there been any objection proceedings pending as aforesaid and review applications under the Access to Information Act as set out above, then the present proceedings would have been sustainable on the basis that they would have been meant to assist the petitioner get justice either before the Commission on Administrative Justice and the Commissioner of Domestic Taxes. There being no any such proceedings pending, the present proceedings are premature. 33.In the circumstances, I am persuaded that the application and the Petition before this Court has been brought prematurely and without adherence to the relevant statutes, to wit, the Tax Procedures Act, the Tax Appeals Tribunal Act, the Access to Information Act and the Fair Administrative Action Act. 34.Accordingly, the Preliminary Objection is meritorious and is allowed. The Court lacks jurisdiction to entertain the suit and the application and strikes out both of them with costs.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE