[2016] KEHC 2143 (KLR)
The court found that the relevant provisions of the Income Tax Act (Sections 89–91A) cited by the ex parte Applicant had been repealed by the Tax Procedures Act, 2015, which came into force on 19th January, 2016. The agency notices in question were issued under Section 42 of the Tax Procedures Act, 2015, and both...
Source-derived case information.
- Citation
- [2016] KEHC 2143 (KLR)
- Parties
- Applicant: Republic; Respondent: Kenya Revenue Authority; Applicant: Elsek & Elsek (K) Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 79 of 2016
- Procedural Posture
- Judicial Review / Ruling on Application for Stay of Agency Notices
- Outcome
- Application for stay of agency notices declined.
- Legal Topics
- Judicial Review of Tax Decisions, Agency Notices, Tax Collection Procedures, Statutory Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kenya Revenue Authority
Respondent
Elsek & Elsek (K) Ltd
Applicant
Procedural Posture
Judicial Review / Ruling on Application for Stay of Agency Notices
Legal Issues
- 1 Whether the agency notices issued by the Kenya Revenue Authority to the ex parte Applicant's bankers were lawful and compliant with the applicable statutory provisions.
- 2 Whether the court should grant a stay of the agency notices pending the determination of the substantive judicial review application.
Ratio Decidendi
The court found that the relevant provisions of the Income Tax Act (Sections 89–91A) cited by the ex parte Applicant had been repealed by the Tax Procedures Act, 2015, which came into force on 19th January, 2016. The agency notices in question were issued under Section 42 of the Tax Procedures Act, 2015, and both the agency banks and the Respondent were required to comply with the procedures prescribed therein. The court held that the proper course for the ex parte Applicant was to utilize the objection and appeals procedures provided under the Tax Procedures Act, 2015, rather than seek a stay through judicial review. Consequently, the application for a stay of the agency notices was...
Court Disposition
Application for stay of agency notices declined.
Orders
- The application for a stay of the agency notices is declined.
- The ex parte Applicant is directed to comply with the relevant provisions of the Tax Procedures Act, 2015, including the objection and appeals procedure.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
JUDICIAL REVIEW NO. 79 OF 2016
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW FOR ORDER OF CERTIORARI AND PROBIBITION
AND
IN THE MATTER OF: INCOME TAX ACT CAP 470
BETWEEN
REPUBLIC …………………………………….............APPLICANT
VERSUS
KENYA REVENUE AUTHORITY……...……...…….RESPONDENT
ELSEK & ELSEK(K) LTD………………..EX PARTE APPLICANT
RULING
1. Leave was granted to the ex parte Applicant to commence Judicial Review Proceedings against the Respondent by orders made on 7th November, 2016 for orders of certiorari and this being a revenue matter, I directed counsel for the ex parte Applicant to serve the Respondent with the substantive motion and return on 16th November, 2016.
2. When the matter was called out on 16th November, 2016 there was no counsel for the Respondent and the matter was taken out and fixed for hearing on 17th November, 2016 at 11. 00 a.m. In the event Miss Odundo, counsel for the Respondent who appeared in court was not briefed on the matter and sought more time to receive instructions.
3. Mr. Wameyo, counsel for the ex parte Applicant urged that in light of the breaches by the Respondent of the provisions of Section 84, 85 and 86 of the Income Tax Act [Cap 470, Laws of Kenya], the court should stay the implementation of the agency notices to the ex parte Applicant’s Bankers.
4. In light of the fact that Ms. Odundo had no brief on the matter, she sought directions on how to progress with the matter.
Determination
5. Tax and therefore revenue issues are complex. The law keeps changing. In this case, Sections 89–91A of the Income Tax [Cap 470, Laws of Kenya] were repealed by item 5 of the Second Schedule to the Tax Procedures Act 2015 (No. 29 of 2015) which came into force on 19th January, 2016. Reference to Sections 89 – 91A of the Income Tax Act may therefore be inappropriate. The agency notices were issued under Section 42 of the Tax Procedures Act, 2015 and the procedures prescribed in that Section must be complied with by the agency Banks, and the Respondent.
6. It looks to me therefore that the proper course for the ex parte Applicant is to comply with the relevant provisions of the Tax Procedures Act, 2015 including its objection and appeals procedure. A stay of the agency notices is therefore declined.
Dated, Signed and Delivered at Mombasa this 17th day of November, 2016.
M. J. ANYARA EMUKULE, MBS
JUDGE
In the presence of:
No Appearance for Applicant
Mr. Chabala for Respondent
Mr. Kaunda Court Assistant