[2013] KEHC 6000 (KLR)

REV. DR. TIMOTHY NJOYA & 17 OTHERS.................................................................................................PETITIONERS

VERSUS

THE HON. ATTORNEY GENERAL.........................................................................................................1ST RESPONDENT

THE CLERK OF THE NATIONAL ASSEMBLY.....................................................................................2ND RESPONDENT

THE MINISTER FOR FINANCE..............................................................................................................3RD RESPONDENT

HON. KENNETH MARENDESPEAKER OF THE NATIONAL ASSEMBLY.........................................4TH RESPONDENT

HEAD OF THE PUBLIC SERVICE & SECRETARY TO THE CABINET FRANCIS MUTHAURA.......5TH RESPONDENT

MEMBER CONSTITUENCY PARTY

SALLY JEMNGETICH KOSGEI ALDAI ODM 6TH RESPONDENT

EDWIN OCHIENG YINDA ALEGO/USONGA ODM 7TH RESPONDENT

OJAAMONGSON SOSPETER O. AMAGORO ODM 8TH RESPONDENT

BENEDICT FONDO GUNDA BAHARI ODM 9TH RESPONDENT

SAMMY S. KOMEN MWAITA BARINGO CENTRAL ODM 10TH RESPONDENT

ASMAN A. KAMAMA BARINGO EAST PNU 11TH RESPONDENT

WILLIAM C. KIPKORIR BARINGO NORTH ODM 12TH RESPONDENT

CHARLES CHERUIYOT KETER BELGUT ODM 13TH RESPONDENT

CHRISTOPHER MOGERE OBURE BOBASI ODM 14TH RESPONDENT

JOEL ONYANCHA OMAGWA BOMACHOGE FORD – P 15TH RESPONDENT

BEATRICE KONES BOMET ODM 16TH RESPONDENT

CHARLES ONYANCHA BONCHARI ODM 17TH RESPONDENT

OBURU OGINGA BONDO ODM 18TH RESPONDENT

ABABU NAMWAMBA BUDALANGI ODM 19TH RESPONDENT

BIFWOLI WAKOLI SILVESTER BUMULA PNU 20TH RESPONDENT

ABDI NASIR NUH BURA ODM-K 21ST RESPONDENT

FRANKLINE BETT BURET ODM 22ND RESPONDENT

WYCLIFFE OPARANYA A. BUTERE ODM 23RD RESPONDENT

ALFRED BWIRE ODHIAMBO BUTULA ODM 24TH RESPONDENT

GITOBU IMANYARA CENTRAL IMENTI CCU 25TH RESPONDENT

KAJEMBE RAMATHAN SEIF CHANGAMWE ODM 26TH RESPONDENT

ISAAC KIPRONO RUTO CHEPALUNGU ODM 27TH RESPONDENT

JOSHUA SEREM KUTUNY CHERANGANY ODM 28TH RESPONDENT

BETH WAMBUI MUGO DAGORETTI PNU 29TH RESPONDENT

ADEN DUALE BARE DUJIS ODM 30TH RESPONDENT

MOSES K. LESSONET ELDAMA RAVENI ODM 31ST RESPONDENT

MARGARET JEPKOECH KAMAR ELDORET EAST ODM 32ND RESPONDENT

RUTO, SAMOEI WILLIAM K. ELDORET NORTH ODM 33RD RESPONDENT

PERIS CHEPCHUMBA ELDORET SOUTH ODM 34TH RESPONDENT

RACHEL SHEBESH NOMINATED MP ODM 35TH RESPONDENT

ELIJAH KIPTARBEI LAGAT EMGWEN ODM 36TH RESPONDENT

WILBERFORCE OTICHILO EMUHAYA ODM 37TH RESPONDENT

SUGOW AHMED ADEN FAFI KANU 38TH RESPONDENT

PAUL OTUOMA NYONGESA FUNYULA ODM 39TH RESPONDENT

BENJAMIN LAGAT AINAMOI ODM 40TH RESPONDENT

DHADHO GADDAE GODHANA GALOLE ODM 41ST RESPONDENT

FRANCIS K. BAYA GANZE KADU-A 42ND RESPONDENT

MUNGATANA DANSON BUYA GARSEN NARC -K 43RD RESPONDENT

CLEMENT KUNGU WAIBARA GATUNDU NORTH PICK 45TH RESPONDENT

KENYATTA UHURU GATUNDU SOUTH KANU 46TH RESPONDENT

JAKOYO MIDIWO GEM ODM 47TH RESPONDENT

MARTHA KARUA WANGARI GICHUGU ODM 48TH RESPONDENT

PETER NJOROGE BAIYA GITHUNGURI PNU 49TH RESPONDENT

JOHN MBADI GWASI ODM 50TH RESPONDENT

KHANIRI GEORGE MUNYASA HAMISI ODM 51ST RESPONDENT

NTOITHIA M\\\'MITHIARU IGEMBE NORTH PNU 52ND RESPONDENT

FRANKLIN MITHIKA LINTURI IGEMBE NORTH PNU 53RD RESPONDENT

HAJI YUSUF MOHAMED IJARA KANU 54TH RESPONDENT

BONI KHALWALE IKOLOMANI NEW F. K. 55TH RESPONDENT

KUTI MOHAMED ABDI ISIOLO NORTH NARC-K 56TH RESPONDENT

ABDUL BAHARI ISIOLO SOUTH KANU 57TH RESPONDENT

WILLIAM KABOGO JUJA NARC-K 58TH RESPONDENT

POGHISIO SAMUEL LOSURON KACHELIBA ODM-K 59TH RESPONDENT

GIDEON NDAMBUKI M. KAITI ODM-K 60TH RESPONDENT

NKAISERRY JOSEPH K. KAJIADO CENTRAL ODM 61ST RESPONDENT

SAITOTI GEORGE KAJIADO NORTH PNU 62ND RESPONDENT

METITO KATOO KAJIADO SOUTH

63RD RESPONDENT

SAMUEL KAZUNGU KAMBI KALOLENI PNU 64TH RESPONDENT

JAMES MAINA KAMAU KANDARA PNU 65TH RESPONDENT

ALFRED KHANG\\\'ATI KANDUYI ODM 66TH RESPONDENT

MICHUKI JOHN NJOROGE KANGEMA PNU 67TH RESPONDENT

JOHNSON NDUYA MUTHAMA KANGUNDO ODM-K 68TH RESPONDENT

JULIUS RECHA MURGOR KAPENGURIA ODM 69TH RESPONDENT

JAMES G. KWANYA REGE KARACHUONYO ODM 70TH RESPONDENT

ELIZABETH ONGORO KASARANI ODM 71ST RESPONDENT

JOSEPH OYUGI MAGWANGA KASIPUL-KABONDO ODM 72ND RESPONDENT

WAVINYA NDETI KATHIANI CCU 73RD RESPONDENT

LUCAS C. KIPKOSGEI KEIYO NORTH ODM 74TH RESPONDENT

JACKSON KIPLAGAT KIPTANUI KEIYO SOUTH ODM 75TH RESPONDENT

EVANS BULIMO AKULA KHWISERO ODM 76TH RESPONDENT

STANLEY MUNGA GITHUNGURI KIAMBAA KANU 77TH RESPONDENT

PHILLIP KYALO KALOKI KIBWEZI ODM-K 78TH RESPONDENT

NEMESYUS WARUGONGO KIENI PNU 79TH RESPONDENT

MWANGI ONESMUS KIBUMO PNU 80TH RESPONDENT

JAMLECK IRUNGU KAMAU KIHARU S. K. SISI 81ST RESPONDENT

LEWIS NGUYAI NGANGA KIKUYU PNU 82ND RESPONDENT

GIDEON KONCHELLA KILGORIS

882ND \\\'A\\\' RESPONDENT

JOHN HARUN MWAU KILOME PICK 83RD RESPONDENT

DAVID ESELI SIMIYU KIMILILI FORD-K 84TH RESPONDENT

RAI SAMUEL GONZI KINANGO FORD-P 85TH RESPONDENT

DAVID MWANIKI NGUGI KIPKELION S. K. SISI 86TH RESPONDENT

KIMUNYA AMOS MUHINGA KIPIPIRI PNU 87TH RESPONDENT

KIPRONO LANGAT J MAGERER KIPKELION ODM 88TH RESPONDENT

JOHN NGATA KARIUKI KIRINYAGA CENTRAL F-ASILI 89TH RESPONDENT

HASSAN ALI JOHO KISAUNI ODM 90TH RESPONDENT

NYONG\\\'O PETER ANYANG\\\' KISUMU RURAL ODM 91ST RESPONDENT

SHABBIR A. SHAKEEL AHMED KISUMU TOWN EAST ODM 92ND RESPONDENT

JOHN ALUOCH OLAGO KISUMU TOWN WEST ODM 93RD RESPONDENT

NGILU CHARITY KALUKI KITUI CENTRAL NARC 94TH RESPONDENT

ISAAC MULATYA MUOKI KITUI SOUTH ODM-K 95TH RESPONDENT

CHARLES MUTISYA NYAMAI KITUI WEST NARC 96TH RESPONDENT

RICHARD M. ONYONKA KITUTU CHACHE PDP 97TH RESPONDENT

WALTER E. NYAMBATI OSEBE KIKTUTU MASABA N.P 98TH RESPONDENT

JULIUS KIPYEGON KONES KONOIN ODM 99TH RESPONDENT

ZAKAYO K. CHERUIYOT KURESOI

TWAHA YASIN FAHIM LAMU EAST PNU 107TH RESPONDENT

MOHAMED ABU CHIABA LAMU WEST NARC-K 108TH RESPONDENT

DAVID N. KIBURI MWAURA LARI PPK 109TH RESPONDENT

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JIRONGO CYRUS LUGARI KADDU 113TH RESPONDENT

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VICTOR KIOKO MUNYAKA MACHAKOS TOWN ODM-K 115TH RESPONDENT

AMASON KINGI JEFFA MAGARINI ODM 116TH RESPONDENT

PETER L. N. KIILU MAKUENI ODM-K 118TH RESPONDENT

SHITANDA PETER SOITA MALAVA N. F. KEN 119TH RESPONDENT

MAITHA GIDEON MUNGARO MALINDI ODM 120TH RESPONDENT

H. MOHAMED ABDIKADIR MANDERA CENTRAL SAFINA 121ST RESPONDENT

MOHAMED HUSSEIN ALI MANDERA EAST ODM 122ND RESPONDENT

MOHAMED A. H. M. MANDERA WEST ODM 123TH RESPONDENT

EMILIO MUREITHI KATHURI MANYATTA DP 124TH RESPONDENT

MBAU, ELIAS PETER MARAGWA PNU 125TH RESPONDENT

KILIMO, LINAH JEBII MARAKWET EAST KENDA 126TH RESPONDENT

BOAZ KIPCHUMBA KAINO MARAKWET EAST ODM 127TH RESPONDENT

MBAI BENSON ITWIKU MASINGA ODM-K 128TH RESPLENDENT

CLEMENT MUCHIRI W. MATHIOYA PNU 129TH RESPONDENT

EPHRAIM MWANGI MAINA MATHIRA SAFINA 130TH RESPONDENT

MWAKWERE, CHIRAU ALI MATUGA PNU 131TH RESPONDENT

WERE, DAVID AOKO MATUNGU ODM 132TH RESPONDENT

KAJWANG\\\', GERALD OTIENO MBITA ODM 133TH RESPONDENT

MUTULA KILONZO MBOONI ODM-K 134TH RESPONDENT

JOHN PESA DACHE MIGORI ODM 135TH RESPONDENT

HELLEN JEPKEMBOI SAMBILI MOGOTIO UDM 136TH RESPONDENT

JOSEPH NGANGA KIUNA MOLO PNU 137TH RESPONDENT

DAVID K. KOECH MOSOP ODM 138TH RESPONDENT

MOHAMUD MOHAMED ALI MOYALE ODM 139TH RESPONDENT

OMAR MBWANA ZONGA MSAMBWENI ODM 140TH RESPONDENT

FRED CHESEBE KALPONDI MT. ELGON ODM 141TH RESPONDENT

OLWENY, PATRICK AYIECHO MUHORONI ODM 142TH RESPONDENT

KABANDO WA KABANDO MUKURWEINI SAFINA 143TH RESPONDENT

BENJAMIN JOMO WASHIALI MUMIAS ODM 144TH RESPONDENT

HON. MILLIE O. MABONA NOMINATED MP ODM 145TH RESPONDENT

BALALA MOHAMED NAJIB MVITA ODM 146TH RESPONDENT

DANIEL MUTUA MUOKI MWALA ODM-K 147TH RESPONDENT

ANDREW CALIST MWATELA MWATATE ODM 148TH RESPONDENT

PETER NJUGUNA GITAU MWEA PNU 149TH RESPONDENT

JOSEPH NYAGA NOMINATED MP ODM 150TH RESPONDENT

MUSILA DAVID MWINGI SOUTH ODM-K 150TH RESPONDENT

JOHN MUTUTHO NAIVASHA KANU 151TH RESPONDENT

LEE MAIYANI KINYANJUI NAKURU TOWN PNU 152TH RESPONDENT

OKEMO CHRYSANTHUS NAMBALE ODM 153TH RESPONDENT

NTIMAMA, WILLIAM R. OLE NAROK NORTH ODM 154TH RESPONDENT

NKOIDILA OLE LANKAS NAROK SOUTH ODM 155TH RESPONDENT

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JAPHET M. KAREKE MBIUKI NITHI KANU 159TH RESPONDENT

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SILAS MURIUKI RUTEERE NORTH IMENTI MAZ. RA 161ST RESPONDENT

WILFRED MORIASI OMBUI NORTH MUGIRANGO B. KANU 162ND RESPONDENT

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SAMSON KEGENGO ONGERI NYARIBABI MASABA KANU 166TH RESPONDENT

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AMINA ABDALLA NOMINATED PNU 16TH RESPONDENT

MARTIN OTIENO OGINDO RANGWE ODM 170TH RESPONDENT

NICHOLAS O. GUMBO RARIEDA ODM 171TH RESPONDENT

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LESIRMA SIMEON SAIMANGA SAMBURU WEST ODM 179TH RESPONDENT

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LENNY MAXWELL KIVUTI SIAKAGO SAFINA 181ST RESPONDENT

WILSON MWOTINY LITOLE SIGOR ODM 182ND RESPONDENT

WETANGULA MOSES MASKISA SIRISIA PNU 183RD RESPONDENT

LORNA CHEPKEMOI LABOSO SOTIK ODM 184TH RESPONDENT

DR. JOYCE LABOSO SOTIK ODM 184TH RESPONDENT

MURUNGI KIRAITU SOUTH IMENTI PNU 185TH RESPONDENT

SAM NYAMWEYA SOUTH MUGIRANGO ODM 186TH RESPONDENT

NELSON RIBUTHI GAICHUHIE SUBUKIA ONU 187TH RESPONDENT

SHABAN NAOMI NAMSI TAVETA KANU 188TH RESPONDENT

FRANCIS THOMEBE NYAMMO TETU PNU 189TH RESPONDENT

ALEX M. MBURI MWIRU THARAKA ONU 190TH RESPONDENT

MUNYA PETER GITIRAU TIGANIA EAST PNU 191ST RESPONDENT

MWIRIA VALEERIAN KILEMI TIGANIA WEST PNU 192ND RESPONDENT

KOSGEY HENRY KIPRONO TINDERET ODM 193RD RESPONDENT

ETHURO DAVID ETHURO TURKANA CENTRAL PNU 194TH RESPONDENT

MUNYES JOHN KIYONGA TURKANA NORTH ONU 195TH RESPONDENT

JOSEPHAT NANOK KOLI TURKANA SOUTH ODM 196TH RESPONDENT

AGGREY JAMES ORENGO UGENYA ODM 197TH RESPONDENT

CYPRIAN OJWANG OMOLLO URIRI ODM 198TH RESPONDENT

YUSUFU KIFUMA CHANZU VIHIGA ODM 199TH RESPONDENT

DANSON O. MWAKULEGWA VOI ODM 200TH RESPONDENT

IBRAHIM ELMI MOHAMED WAJIR EAST ODM 201ST RESPONDENT

HUSSEIN GABO MOHAMMED WAJIR NORTH ODM 202ND RESPONDENT

ABDIRAHMAN H. ALI WAJIR SOUTH KANU 203RD RESPONDENT

ADAN KEYNAN WELIHYE WAJIR WEST KANU 204TH RESPONDENT

WEKESA B. A. SAMBU WEBUYE ODM 205TH RESPONDENT

JAMES ONDICHO GESAMI WEST MUGIRANGO ODM 206TH RESPONDENT

GUMO FREDRICK OMULO WESTLANDS ODM 207TH RESPONDENT

THOMAS L. MWADEGHU WUNDANYI ODM 208TH RESPONDENT

KILONZO CHARLES MUTAVI YATTA ODM-K 209TH RESPONDENT

SOHIA ABIDI NUR NOMINATED ODM 210TH RESPONDENT

GEORGE NYAMWEYA NOMINATED PNU 211TH RESPONDENT

SHEIKH DOR NOMINATED ODM 212TH RESPONDENT

MOHAMMED AFFEY NOMINATED PNU 213TH RESPONDENT

MUSA SIRMA NOMINATED ODM 214TH RESPONDENT

AMINA ABDALLA NOMINATED KANU 215TH RESPONDENT

MUSIKARI KOMBO NOMINATED ODM 216TH RESPONDENT

SHAKILA ABDALLA NOMINATED ODM-K 217TH RESPONDENT

MASON LESHOMA NOMINATED PNU 218TH RESPONDENT

COMMISSION ON THE IMPLEMENTATION

OF THE CONSTITUTION(CIC)…………………………1ST INTERESTED PARTY

KENYA REVENUE AUTHORITY………………………2ND INTERESTED PARTY

JUDGMENT

The amended petition dated 12th September 2011 seeks the following prayers:

a)A declaration that under the Constitution all State Officers, including Members of Parliament are under an obligation to pay tax as per Article 210 as read with Article 201 and 230 of the Constitution and that the Head of the Civil Service and Secretary to the Cabinet or the Hon. Attorney General, the 1st Respondent herein or the President and the Prime Minister have no powers or authority to exempt any state officer from the payment of tax;

b)A declaration that neither the current Constitution nor the transitional clauses saves or exempts the members of Parliament from payment of Tax and that it is illegal and unconstitutional for the Government to settle the tax burden of the members of Parliament using public resources or monies drawn from the Consolidated Fund or from any other monies or and that it would be unconstitutional to divert or re-allocate funds derived from tax-payer’s money to settle the tax obligations of the Respondent members of Parliament or any other state Officers;

c)A declaration under the new Constitution only the salaries and Remuneration Commission can review the salaries of ‘state officers’ and that it would be illegal and unconstitutional for Members of Parliament to review their salaries to offset the demand to pay tax;

d)A declaration that it would be illegal and unconstitutional for the Members of Parliament to sabotage or frustrate the process of debate or passage of bills necessary for the full implementation of the Constitution or passage of the National Budget or any motion or legislation of the government on account of the demand by the Kenya Revenue Authority to pay taxes.

e)An order of injunction permanently restraining the 1st, 2nd and 5th Respondents from implementing or enforcing the directive by the Head of Civil Service and Secretary to the Cabinet to Permanent Secretaries that all taxes of Members of Parliament demanded by the Kenya Revenue Authority, the 2nd Interested Party herein, be settled by the Government, and directing that all the deductions made upon their salaries be refunded by the respective Permanent Secretaries, further restraining the 3rd Respondent, the Minister of Finance herein, effecting or implementing the said directive to settle tax obligations of the Members of Parliament from the Consolidated Fund or any of the tax payers monies held or maintained by the Government for and on behalf of the people of Kenya;

f)An order compelling the Clerk of the National Assembly the 2nd Respondent herein and or the employer of the 6hth to 209th Respondent to deduct and remit at source the salaries of the Respondents including arrears and to remit the same regularly to the 2nd Interested Party as required by law.

On 27th August 2010, a new Constitution was promulgated. During the period of transition from the old order to the new order, transitional clauses were put in place to enable the country have a smooth transition.

According to the Petitioners, on or about the 17th of August 2011, the Head of the Public Service and Secretary to the Cabinet, the 5th Respondent herein, issued a directive vide a circular to the Permanent Secretaries of all ministries in the government to refund all taxes or deductions made on the salaries and payslips of all Cabinet Ministers and Assistant Ministers. The said circular further directed that all the taxes demanded from the Respondents by the Kenya Revenue Authority from September 2010 to June 2011, as well as any further taxes demanded in the period until December 2012, be settled by the Government.

The Petitioners further contend that Members of Parliament have entered into an agreement with, or that a representation was made by, the 1st Respondent, and assurances issued by the Minister for Finance (the 3rd Respondent herein) the President and Prime Minister to the effect that the provision of Article 210 would not apply to the current life of the National Assembly.

The Petitioners case is therefore that:

a)That the Constitution of Kenya 2010 provides for a situation where all citizens working in the country pay taxes on all their income;

b)That Chapter 12 of the Constitution of Kenya, 2010 came into force immediately after the promulgation of the Constitution and is not suspended by the transitional and consequential provisions contained in the Sixth Schedule. The provisions that impose taxation on everybody have not been suspended by the Sixth Schedule and that they were to apply immediately after the promulgation of the Constitution. These provisions are Articles 201, 210, (1) (2) (a) and (b) as read with Article 230 (4) of the Constitution.

c)That under section 10 of the Sixth Schedule of the Constitution, the life of the National Assembly is saved, but the members are not excluded or shielded from the payment of taxes that are imposed under Articles 209 and 210 of the Constitution.

The Payment of taxes is therefore a constitutional obligation, and by virtue of Article 2 of the Constitution of the Republic, is binding on all persons including the executive and members of parliament.

The Respondents on the other hand take the position that due to the Transitional and Consequential provisions contained in the Sixth Schedule to the Constitution, and in particular sections 6, 7 and 32, the Members of the National Assembly are exempted from paying taxes on their allowances.

The repealed Constitution had no provisions regarding taxation. Remuneration of Members of Parliament was governed by the National Assembly Remuneration Act, 2005. Under this Act, allowances paid to members of the National Assembly were exempt from income tax.

The Constitution of Kenya, 2010 dedicates an entire chapter to public finances. The principles of public finance are outlined in Article 201 of the Constitution of Kenya. Theseprinciples are:

201. The following principles shall guide all aspects of public finance in the Republic —

(a) there shall be openness and accountability, including public participation in financial matters;

(b) the public finance system shall promote an equitable society, and in particular —

(i) the burden of taxation shall be shared fairly;

(ii) revenue raised nationally shall be shared equitably among national and county governments; and

(iii) expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas;

(c) the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;

(d) public money shall be used in a prudent and responsible way; and

(e) financial management shall be responsible, and fiscal reporting shall be clear.

Article 210 of the Constitution of Kenya lays down the basis for the imposition of tax. It provides that:

210. (1) No tax or licensing fee may be imposed, waived or varied except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee —

(a) a public record of each waiver shall be maintained together with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to the Auditor-General.

(3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of —

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

A state officer is defined under Article 260 of the Constitution of Kenya as any person who holds a state office. A state officer includes the President, the Deputy President, a Cabinet Secretary and a Member of Parliament.

Under the new Constitution, the increase in salaries of any state officer is subject to, and under the jurisdiction and control of the Salaries and Remuneration Commission established under Article 230 of the Constitution. At the time of filing this petition, the Salaries and Remuneration Commission had not yet been established.

The Petitioners’ case is that Chapter 12 of the Constitution of Kenya, 2010 came into force immediately after the promulgation of the Constitution and is not suspended by the transitional and consequential provisions contained in the Sixth Schedule. The Petitioners state that the provisions that impose taxation on everybody have not been suspended by the Sixth Schedule and that they were to apply immediately after the promulgation of the Constitution. These provisions are Articles 201, 210, (1) (2) (a) and (b) as read with Article 230 (4) of the Constitution. It is the Petitioners’ case that under section 10 of the Sixth Schedule of the Constitution, the life of the National Assembly is saved, but the members are not excluded or shielded from the payment of taxes that are imposed under Articles 209 and 210 of the Constitution.

Payment of taxes is therefore a constitutional obligation, and by virtue of Article 2 of the Constitution of the Republic, is binding on all persons including the executive and members of parliament.

The Petitioners state that it is now common knowledge that members of the National Assembly have declined to comply with a demand by the Kenya Revenue Authority to pay taxes. They claim that the refusal to pay taxes amounts to a violation of their rights under the Constitution but is also in breach of Articles 201, 210 and 230 of the Constitution.

The Petitioners also claim that any decision or intended deals put in place to exempt, excuse or vary the obligation of Members of the National Assembly to pay tax, or to increase their salaries to help them offset their tax obligations would be discriminatory and unconstitutional and contrary to Article 27 of the Constitution.

The Petitioners further state that that any agreement, representations, promissory notes and assurances made to exempt the 6th – 218th Respondents from any payment of tax would not constitute any law, and even if they did, Article 210 (3) clearly prohibits the making of any law that would exclude or authorise the exclusion of any State Officer from payment of tax. The Petitioners take the position that the Members of the National Assembly not only have a duty but an obligation to Kenyans and to the Constitution to make good their duty to pay tax.

The Petitioners also take issue with the proposed implementation of the Akiwumi Report on Salary Increment in the National Assembly. They state that implementing the report and increasing the salaries of members of the National Assembly is in express violation in Article 230 of the Constitution which makes the review of salaries of State Officers the exclusive of the Salaries and Remuneration Commission which is yet to be formed.

The Petitioners have asked this court to interpret whether the Respondents, and in particular the Members of the National Assembly are ‘state officers’ as contemplated under Articles 210 of the Constitution and whether in the use of public resources and management of public finance all State Officers are bound by the provisions of Article 201.

They also seek an interpretation as to whether any decision to increase the salaries of the sitting members of parliament prior to the establishment of the Salaries and Remuneration Commission is in breach of Article 230 of the Constitution.

The Petitioners also want this court to make a determination as to whether the substantive provisions of the Constitution or the provisions contained in the transitional and consequential provisions exempts members of Parliament from the payment of tax.

The petition is opposed by the 1st, 3rd and 5th Respondents. They filed grounds of opposition dated 15th March 2012 which set out their position as follows:

a)The application is misconceived and an abuse of the process of the court, they stated that the alleged directive is not annexed to the Petition and as such, the Petition is founded on speculation and suspicion. They also state that the Petition is incompetent, is devoid of merit, is premature, misplaced and misdirected.

b)The provisions relating to the payment of tax by members of Parliament are clear and there is nothing for constitutional interpretation by the court; that the petition does not disclose any cause of action or any constitutional violation or breaches by the Respondents. They are of the view that this case ought to be dismissed with costs.

The petition is also opposed by way of the Replying Affidavit of Peter Gichohi sworn on 26th January 2012, the 2nd Respondent, who swears the affidavit on behalf of the 4th, 5th and 6th – 209th Respondents in his capacity as the Accounting Officer of the Parliamentary Service Commission and the National Assembly. In this affidavit, the Respondents take issue with the Petitioners’ interpretation of the aforesaid constitutional provisions.

The Respondents case is that the petition as drawn is incompetent, is devoid of merit and is unmaintainable because it is a direct challenge on the validity and legality of the stipulations of the Constitution of Kenya which is prohibited by Article 2 (3) of the Constitution of Kenya. They submit that this court has no jurisdiction to hear this matter or issue the orders sought.

The Respondents state that even under Article 210 of the Constitution, there is no basis for issuing the orders as they would amount to imposing a tax burden that is not provided in law, and this would be a violation of the principle of legality.

The Respondents concede that Members of the National Assembly are state officers within the meaning of Article 260 of the Constitution. They also concede that under the provisions of Articles 210 and 230 of the Constitution of Kenya, all state officers are obligated to pay tax. The Respondents however claim that under the current taxation regime Members of the National Assembly, and its Committees as they are presently constituted, are not required to pay taxes on their allowances until the expiry of the present term of the National Assembly.

The Respondents fault the Petitioners for failing to wholly appreciate the special transitory period that the country is undergoing and the nature of government and institutions that were in place during and immediately preceding the promulgation of the Constitution.

The Respondents case is that they ought not to have their allowances taxed until the expiry of the current term because:

a)By virtue of Article 262 of the Constitution of Kenya, the sixth schedule preserves certain rights of the Members of the National Assembly as presently constituted until the expiry of their term. This is a protection came into effect on the effective date of the Constitution of Kenya 2010.

b)Article 264 of the Constitution preserves the provisions of the former Constitution enacted pursuant which were preserved by the Sixth Schedule and will remain in force until the expiry of the term of the present National Assembly.

c)Section 3 (2) of the Sixth Schedule of the Constitution of Kenya preserves sections 30 to 58 of the former Constitution until the first general elections held under the present Constitution;

d)Section 10 of the said sixth schedule expressly provides that the National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for the unexpired term;

e)Parliament passed the National Assembly Remuneration Act, Chapter 5 of the Laws of Kenya and the National Assembly (Powers and Privileges) Act chapter 6 of the Laws of Kenya before the promulgation of the present Constitution;

f)The National Assembly Remuneration Act was and remains the legislation dedicated to providing for the remuneration and taxation of Members of the National Assembly. This Act details the part of remuneration which is tax exempt. The Respondents state that challenging section 5 of this statute is impossible as long as the same remains in force, there can be no basis for the challenge.

g)The Respondents also take the view that sections 3 (2), 7, and 10 of the Sixth Schedule of the Constitution of Kenya which preserves the National Assembly and its integrity of its term begets a legitimate expectation on the Members of Parliament not to lose the existing rights under the National Assembly Remuneration Act, Chapter 5 of the Laws of Kenya including the right not to have their allowances taxed as well as their existing privileges and immunities until expiry of the term and the legitimate expectation sealed. This creates an actual and vested right to property guaranteed under Article 40 of the Constitution of Kenya which the High Court is enjoined to protect under the Bill of Rights;

h)Compelling Members of the National Assembly to pay additional tax, thereby negating their rights not to be burdened by additional tax upon their allowances is tantamount to altering the integrity and privileges and immunities by taking away a portion of the allowances of the Members of the National Assembly and is tantamount to altering the integrity and privileges of the standing of the National Assembly, and contravenes Articles 262 of the Constitution of Kenya and the sixth schedule sections 3(2) and 10 of the Constitution of Kenya.

In sum, the Respondents are of the view that they do not owe any taxes to the Kenya Revenue Authority in respect of their allowances.

During oral submissions, the petitioners were represented by Mr. Oluoch. He outlined 5 issues that he wanted the court to make determination on:

1. Whether the privileges enjoyed by Members of Parliament under the Salaries and Remuneration Act constitute obligations of the government under with section 6 as read with section 7 of the sixth schedule of the Constitution;

2. Whether the relationship between MPs and the Public Service Commission is an employer-employee relationship if so, do the rights and obligations constitute existing rights or obligations of the government within the meaning of section 6 of the Sixth Schedule?

3. Whether the under the new Constitution, there are any specific provisions that suspends the tax obligations of any class or group of persons within the meaning of section 210 of the Constitution of Kenya.

4. Whether any purported waiver or exemption of taxes to any group of persons would constitute a breach of the Constitution under Article 10, 27, 201 and 210 of the said Constitution;

5. Whether the provisions of section 3 of the 6th Schedule of the Constitution constitute waiver of taxation to any members of parliament.

Mr Oluoch submitted it was not contemplated that the existing rights and obligations under section 6 of the 6th Schedule be construed to mean that exemption from taxation is a right. He contends that the Constitution is a living document and it must be interpreted as a whole. He has invited this court to look at the intention of the text of section 6 of the 6th Schedule in the Constitution.

Counsel also submitted on the principles of equality and equity and non-discrimination of citizens on the issue of non-taxation. He submitted that in the absence of express provisions exempting the members of the National Assembly from taxation, there is no class of persons who are exempt from taxation.

The Petitioners’ position is that Section 3 of the 6th Schedule does not exempt members of the National Assembly from taxation. The effect of the section does not give rise to a legitimate expectation, and that non-payment of taxes is not a right but a privilege. There is therefore no provision in law that shields members of parliament from payment of taxes.

The 2nd, 4th, 6th – 209th Respondents were represented by Mr. Ochieng Oduol. Counsel for these parties relied on the submissions dated and filed in court on 20th March 2012.

The Respondents’ position is that the present petition is misconceived and is only an attempt to reduce the terms and benefits of members of the National Assembly. He submits that there is a statute in place which is valid and binding. He states that this petition does not challenge the validity and constitutionality of that Act, but merely an attempt to declare a provision of the Constitution unconstitutional.

He submits that these are issues have already been canvassed before the High Court in Petition Numbers 65 and 123 of 2011, and 185 of 2011, and that to bring this issue before the High Court once more is an abuse of the Court process since the terms and benefits of members of parliament were settled by a court of competent jurisdiction.

Counsel for the Respondents submitted that where there is a conflict between transitional clauses and the provisions of the Constitution, then the transitional provisions would prevail because they deal with specific provisions.

He states that the term of the current parliament is set to expire on 14th January 2013 and the salaries and terms of service of the Members must continue until then.

He submits that this court should not have a say on how much tax any individual should pay, because the mandate of the court is limited to interpretation of the Constitution. In recognition of the doctrine of separation of powers the court should only interpret the law. He also correctly submitted that the High Court has no mandate to assess the amount of tax that is payable by anyone.

Counsel also submitted on the right to property under Article 40 of the Constitution. He states that Article 40 prohibits parliament from enacting a law that permits the state to arbitrarily deprive a person of any property or limit or restrict any right or benefit on the basis of any reason thereon. He states that they have a right that is recognised under the transitional provisions and to deprive the Respondents of that right is contrary to the law.

The Respondents’ positions is that this court is obliged to protect the interests of parliament because there is a right or legitimate expectation that arises from the transitional provisions under section 7 (1) of the 6th Schedule. According to them, the fact that the life of the current parliament is saved also means that the terms and benefits are saved.

The Respondents also state that the perception that the Members of Parliament were excluded from payment of taxes is not right. It is only some of the allowances that are not taxed. They are of the view that Article 210 of the Constitution does not confer any rights - that is a matter of policy which can only be found in legislation.

In response, Mr. Oluoch invited the court to interpret the constitution in a manner that advances the rule of law. He further stated the Constitution must be interpreted as a whole, and not in bits and pieces. He submits that while the transitional and consequential provisions did save the term of the current parliament, the same did not apply to the salaries and remuneration of members of parliament. He submits that there is no conflict between the transitional or constitutional provisions that would necessitate this court to override the substantive provisions of the Constitution.

Mr. Oluoch is of the opinion that if the intention of the transitional and consequential provisions was to exempt Members of the National Assembly from paying taxes, then the drafters of the Constitution would have included that. An integrated and purposive approach to interpreting the Constitution would lead to the conclusion that it was not the intention of the people of Kenya in their sovereign will to exempt taxation for 222 privileged members of the national assembly in the guise of existing obligations and rights.

Counsel further submits that the existing rights and obligations of the Respondents do not include salaries and other benefits. Moreover, the rights of the Respondents must be balanced with those of the other citizens. He submits that every Kenyan is now required to pay taxes.

This Petition is based on the interpretation of the transitional and consequential provisions that are in the Constitution of Kenya, 2010 in relation to taxation.

Transitional provisions are included in legislation in order to facilitate a change from the old regime to a new regime, or from an old law to a new law. Transitional provisions contain special arrangements or structures that will apply, for a limited period of time, as the changes brought about in the new law are being implemented and appreciated.

In the Constitution of Kenya 2010, Article 262 gives effect to the Transitional and Consequential Provisions that are set out in the Sixth Schedule. These provisions are therefore a part of the Constitution.

The place of transitional and consequential provisions has been dealt with before in this court. In Dennis Mogambi Mong’are v Attorney General & 3 others [2011] eKLR (Petition No. 146 of 2011)a three judge bench of this court expressed itself as follows regarding the place of the transitional provisions in the sixth schedule:

54. The transitional provisions contained in the Sixth Schedule are intended to assist in the transition into the new order, but are limited in time and in operation and are to remain in force for the period provided in order to achieve the aspirations of Kenyans in moving into the new order. These transitional provisions are as much a part of the Constitution and as much an expression of the sovereign will of the people as the main body of the Constitution. (emphasis mine)

Mr. Ochieng Oduol for the Respondents is of the view that in the present petition, the transitional and consequential provisions in the Sixth Schedule are in conflict with the substantive constitutional provisions, and that where this happens, thetransitional provisions should prevail.

In Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT27/95) [1995]the South African Constitutional Court had this to say on the place and role of transitional provisions in the Constitution:

(33) It is necessary to consider section 232(4) of the Constitution in context. It is contained in Chapter 15 which is entitled ‘General and Transitional Provisions’ and the section itself, according to the heading, deals with ‘Interpretation’. Section 232(4) is not conclusive on the issue of the exact status of the Constitutional Principles in relation to other provisions in the current Constitution. The section is of general application to all the Schedules to the Constitution. It ensures that they are treated for all purposes as if they formed part of the main body of the Constitution, and makes clear that they do not have a lesser status than provisions located elsewhere in the Constitution. Ordinarily, the position with regard to matter contained in a schedule is as set out by Kotze JA in African and European Investment Co. Ltd. v Warren and Others1924 AD 308at 360:

No doubt a schedule or rule attached to a Statute and forming part of it is binding, but in case of clear conflict between either of them and a section in the body of the Statute itself, the former must give way to the latter.

The South African Constitutional Court went further in this case and quotedCraies, Statute Law (7th Ed. by Edgar, 1971) at 224,as follows:

A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much an enactment, as any other part, but if an enactment in a schedule contradicts an earlier clause the clause prevails against the schedule ... .

Paragraphs 34 and 35 of the decision of the South African Constitutional Court continues:

(34) Section 232(4) therefore ensures that the Schedules to the current Constitution are regarded not merely as an explanatory adjunct subordinated to the clause to which they are attached. Nor are the Schedules texts lacking constitutional status …. Like all provisions of the Constitution they must be interpreted in their context, and if relevant, can be taken into account in interpreting other provisions of the Constitution.

The provisions of Chapter Twelve relating to taxation of all citizens must be interpreted in context. Similarly, the provisions that save the life and term of the Parliament, which provisions are contained in the Sixth Schedule, must be interpreted in context of the principles contained in the Constitution.

The question is what happens when there is a direct and clear conflict between the transitional and consequential provisions, and the substantive provisions of the Constitution?

In John Harun Mwau & 3 others V Attorney General & 2 others [2012] eKLR (Constitutional Petition No. 65 of 2011 Consolidated with Petitions Nos 123 of 2011 and 185 of 2011)a three-judge bench of this court expressed itself as follows regarding a potential conflict:

‘In dealing with the transitional provisions, we are aware of the fact that these provisions are intended to deal with the shift from the old constitutional order to the new one and in the event of conflict between the provisions in the main body and the transitional provisions, the transitional provisions would prevail as they are specific to the situation contemplated.’ (emphasis mine)

With profound respect to the learned judges in that case, I disagree with the proposition that the transitional clauses will prevail over the substantive provisions of the Constitution. I am of the view that the correct position is as stated in the Executive Council of the Western Cape Legislature (supra)case – that the Constitution must be read as an integrated whole, and that where there is a conflict, then the substantive provisions of the Constitution would prevail. The role of the transitional clauses in the Constitution is to ensure a smooth shift from the old to the new order, while the role of the Constitution is to address and correct past injustices, and ensures that the citizens rights are protected in the future.

It is now important to consider whether there exists a conflict between sections 6, 7 and 32 of the Transitional and Consequential provisions in the Sixth Schedule and Chapter Twelve in the Constitution.

Sections 6, 7 and 32 are reproduced hereunder:

6. Except to the extent that this Constitution expressly provides to the contrary, all rights and obligations, however arising, of the Government or the Republic and subsisting immediately before the effective date shall continue as rights and obligations of the national government or the Republic under this Constitution.

7. (1) All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

(2) If, with respect to any particular matter—

(a) a law that was in effect immediately before the effective date assigns responsibility for that matter to a particular State organ or public officer; and

(b) a provision of this Constitution that is in effect assigns responsibility for that matter to a different State organ or public officer, the provisions of this Constitution prevail to the extent of the conflict.

32. The law applicable to pensions in respect of holders of constitutional offices under the former Constitution shall be either the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to the person.

Article 201, which sets out the principles of public finance, provides that the public finance system shall promote an equitable society, and in particular that the burden of taxation shall be shared fairly.

Article 210 of the Constitution provides that:

210. (1) No tax or licensing fee may be imposed, waived or varied except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee—

(a) a public record of each waiver shall be maintained together with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to the Auditor-General.

(3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of—

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

The relevant sections of the Sixth Schedule of the transitional provisions and Chapter Twelve of the Constitution do not reveal any conflict. It is also instructive that the provisions of Chapter Twelve are not suspended under section 2 of the Sixth Schedule.

If there had been a conflict, Article 259 of the Constitution would be of help in resolving it. This Article sets out the manner in which the Constitution should be construed. It must be done in a manner that:

a)promotes its purposes, values and principles;

b)advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

c)permits the development of the law; and

d)contributes to good governance

Moreover, as the Petitioners’ counsel rightly pointed out, the Constitution must be interpreted as a whole, and not in bits and pieces.

Section 3 (2) of the Sixth Schedule provides that sections 48 to 58 of the former Constitution shall continue to operate until the first general elections held under the current Constitution. Section 57 of the repealed Constitution is the relevant provision. It provided that:

“Without prejudice to the powers conferred by section 56, Parliament may, for the purpose of the orderly and effective discharge of the business of the National Assembly, provide for the powers, privileges and immunities of the Assembly and its committees and members.”

A reading of this section of the repealed Constitution shows that the Members National Assembly had the power to set their terms of service. It is pursuant to this section that Parliament enacted the National Assembly RemunerationActwhich provided for their remuneration as well as the exemption of allowances from Income Tax. Section 5 of this Act provides that:

‘All allowances payable under this Act shall be exempt from income taxnotwithstanding the provisions of any other written law relating to income tax.’

Section 10 of the Sixth Schedule saved the term of the National Assembly thus:

The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.

The question that arises for determination here is whether the National Assembly as it has been saved under Section 10 of the Sixth Schedule implies that its members would be exempted from paying taxes on their allowances.

Mr. Ochieng’ Oduol is of the view that this determination cannot be made without first making reference to the system of taxation that is currently in place. He made lengthy submissions on the system of taxation.

Tax is a monetary charge which is imposed by the government on persons or entities to yield public revenue. Income tax is a tax on an individual’s income. The purpose of taxation is for the government to raise revenue that is used for development and to finance public sector activities.

Under the Income Tax Act, income tax is charged on the aggregate amount of income that is both the basic salary as well as the allowances given. In the Constitution, at Article 201, it is stated that the burden of taxation will be shared fairly. This is one of the principles of public finance. The Constitution contains many aspirations. The Respondents have asked me to bear in mind the background of the promulgation of the Constitution in making a determination on the issues before the court.

In theJohn Harun Mwau Case (supra)the court stated that:

174. The two statutes governing the benefits of Members of Parliament are saved by sections 6 and 7 of the Sixth Schedule which preserve existing obligations of the state and preserve all existing laws subject to such alterations, qualifications an exception necessary to bring it into conformity with the Constitution. In our view therefore, the terms of service of Member of Parliament are to be determined in accordance with existing legal provisions. (emphasis mine)

The current legal provisions are contained in the National Assembly Remuneration Act and the Constitution, but it must be remembered that the Constitution is the supreme law.

In constitutional interpretation, it is the purposive interpretation to be used. InNg Ka Ling and others v Director of Immigration (Final Appeal No. 14, 15, 16 Of 1998 (Civil)thecourt stated that:

It is generally accepted that in the interpretation of a constitution … a purposive approach is to be applied. The adoption of a purposive approach is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the constitution and relevant extrinsic materials. So, in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument.(emphasis mine)

Section 7 of the Sixth Schedule is categorical that:

‘All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’

It is my determination that the National Assembly Remuneration Act will continue to be in force with regard to the remuneration of the members of the National Assembly. This legislation was enacted before the promulgation of the current Constitution. The Act however, MUST, by virtue of section 7 of the Sixth Schedule, be brought into conformity with the Constitution. As a result, any legislation made by parliament or agreement that is made in violation of the provisions of the Constitution is void.

The country is coming from a background of greed and financial misappropriation. Public money has in the past not always been applied in its intended purpose of the development of the country. It is for this reason that principles of public finance were included in the Constitution. In my view, the reason that the Committee of Experts included the provision that ‘the burden of taxation would be shared fairly’ was to put a stop to the manner in which public finances were used before and to put in place more equitable and transparent financial management processes, in a manner that applies to all.

Nothing in the substantive provisions of the Constitution, nor in the Transitional and Consequential provisions in the Sixth Schedule suggests that any class of state officers would be exempt from paying taxes on any part of their income. In fact, had the intention been to exempt any state officers from the obligation of payment of tax, then that would have been expressly stated.The only logical conclusion that can be reached is that it was the will of the citizens of the country that everybody contributes to the development of the country by paying tax. I do not think the intention of the people of Kenya was that the 222 privileged members of the National Assembly be exempted from taxation on their allowances and call this a right to the members of the National Assembly.

With this background in mind, I find that it is not possible to claim that Members of the National Assembly have a right not to pay taxes on their allowances. I agree with Mr. Oluoch’s submission that exemption from taxation is a privilege, and not a right. Article 210 of the Constitution is clear that where it is envisaged that there will be a waiver or exemption from taxation, then it must be legislated and must also be reported to the Auditor General.

Section 6 of the sixth schedule upon which the Respondents lay their claim provides for the continuity of all rights and obligations of the Government or the Republic. Exemption from tax is not a right, neither is the failure to levy taxes on members of the National Assembly an obligation of the government.

The Respondents also claim that there is a legitimate expectation by virtue of the existence of the National Assembly Remuneration Act and section 6 of the Sixth Schedule.

The principle of legitimate expectation arises from an express promise. This principles was clearly crystallised in Council Of Civil Service Unions V Minister For Civil Service (1985) AC 375 at 406 where Lord Diplock, defining the principle, stated as follows:

“If the decision made unreasonably departs from the publicly stated policy or customary practice or reneges on an earlier decision or undertaking thus confounding the Applicant’s legitimate expectation from the decision maker, then it can also be argued that there has been a breach of the duty to act fairly. A person or a group may have a legitimate expectation that they will be consulted by the decision maker or if the decision maker has made promises or given undertakings which the decision in question will alter….”

In my view, it would be absurd for the Members of the National Assembly to claim they expected to continue to be exempted from payment of taxes on their allowances. They were aware of the contents of the new Constitution. They were aware that under the new dispensation, Members of the National Assembly would be expected to shoulder their portion of the tax burden. Further existing legislation would be interpreted in a manner that would bring it into conformity with the Constitution. I therefore find that there was no legitimate expectation that Members of the National Assembly would be exempted to payment of taxes.

The Respondents are of the view that taxing their allowances would amount to a violation of their right to property as it is enshrined under Article 40 of the Constitution. The right to property under the Constitution encompasses the right to acquire and own any property, such as land, goods, intellectual property, money or negotiable instruments. In my view, the right to property does not encompass the right to be paid tax-free allowances for members of the National Assembly or for any sector of the society.Allowances, paid alongside salaries, are entitlements gained in return for work done or services that are rendered. Salaries and allowances are paid to ensure that the right to an adequate standard of living is maintained. Be that as it may, the obligation to pay taxes would not be brushed aside by a right. The obligation to pay taxes is in the Constitution. As such, it is a civil duty.

All persons working in Kenya are therefore subject to the payment of taxes, and this duty cannot be contracted out of by an agreement between any of the arms of government unless and until the provisions of Article 210 (2) of the Constitution of Kenya are adhered to.

The Constitution is the supreme law of this country. It is the will of the people, or the mandate they give to dictate and direct the manner in which they ought to be governed. That is why Article 210 has no exclusion or exemption in matters of taxation. In my view, deviations are subject to judicial scrutiny. Any deviations must not be such as to deprive citizens of fair, transparent and effective tax regimes which are applicable to all in equal measure.

In the instant case, there has been no waiver of income taxes on the allowances of Members of the National Assembly that has been reported to the Auditor General as required by Article 210 (2). In addition, there has been no reason advanced by the Respondents as to why the members of the National Assembly should be ‘relieved of the burden of payment of taxes’.

It was submitted to this court that the 5th Respondent issued a directive exempting members of the National Assembly from the payment of taxes, and requiring the Permanent Secretaries in various ministries to refund any tax that had already been levied and remitted. It is a requirement of the rule of law that the exercise of public power by any arm of the government should not be arbitrary. All decisions must be rationally related to the purpose for which the power was given, otherwise it is arbitrary and inconsistent. It is therefore my decision that to pass the constitutional requirement, the exercise of public power by the executive and parliament must at least comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action.

The Constitution provides the foundation for the control of public power. The executive and legislature exercise delegated sovereign or public power. They are therefore constrained by the Constitution, and they may not exercise any power or perform any functions that are beyond those conferred by law.

The Respondents have also claimed that it would be discriminatory for them to pay taxes. With respect, it is not. Income tax is charged on all income, and income is all gains made in regard to services rendered or work done.

In the previous constitutional dispensation, members of the National Assembly were not to pay taxes on all their allowances. In my view, to allow members of the National Assembly to be exempted from income tax on their allowances while other workers pay taxes on all income is discriminatory. It amounts to giving a benefit (that is unexplained) to members of the National Assembly.

Since the Constitution provides that the tax burden should be fairly shared, the most reasonable interpretation is that all citizens should bear their fair share of tax. There should be no class of citizens who are exempted from payment of taxes.

Taxation is a civil duty, and under the Constitution, all State Officers are under an obligation to pay tax. Due to the supremacy of the Constitution, and the fact that the Constitution binds all persons, as well as the state, there can be no agreement that can exempt any State Officer from the payment of tax.

The transitional clauses in the Constitution, and in particular, section 10, save the life of the current Parliament, but makes no mention of the terms and benefits of the members of the National Assembly. The National Assembly Remuneration Act applies with regard to the remuneration of the members of the National Assembly by virtue of section 7 of the Sixth Schedule. The Act however must be read in a manner that conforms to the Constitution as a whole. As such, the National Assembly Remuneration Act must be read with alterations necessary to bring it into conformity with the Constitution.

By virtue of the section 3 (2) of the Sixth Schedule, the members of the National Assembly were entitled to set their own terms and benefits. This entitlement was however extinguished once the Salaries and Remuneration Commission was established.

The court does not have the jurisdiction to determine the amount of taxes that any person can pay. The court is also not in a position to determine the manner in which the National Assembly should allocate public money.

It is my view that the language, spirit, style and intention of the Constitution protects and guards against the painful experiences of the past inequalities, unfairness, disproportionate treatment and enhances equality, accountability, transparency and fairness in all spheres of life within our governance system. The practical application and interpretation of the Constitution creates and develops a tax regime that applies to all citizens without any discrimination. It is my position that to hold otherwise would result in a profound absurdity, totally distorting and disregarding the intention and will of the people of Kenya.

It is not disputed that the members of Parliament fall within the definition and import of Article 210 (3) (a) and 260 of the Constitution in that it is mandatory for all state officers to therefore comply with Article 201 (b) and (d). It is incumbent or it is an obligation for state officers to participate and also be at the forefront of the promotion development and enhancement of an equitable society in the public finance system. A fair distribution of the burden of taxation cannot succeed when a segment of public officers or citizens exempt themselves through legislation or through an agreement with the executive arm of Government. That would be tantamount to a subversion of the will of the citizens and would create grave obstacles or hindrances in the implementation of the Constitution. It is also my view that failure to pay or honour constitutional responsibilities would defeat the use of public money in a prudent and responsible way.

The provisions of the Constitution are addressed to all citizens. Their application is universal, specific and uniform, and attract common consequences and benefits to all.

The rights, duties and obligations of state officers are contiguous and cannot be separated. There is no medical treatment or prescription that is prescribed in the Constitution that can apply to a different segment or category of public officer when it comes to application and imposition of tax under the Constitution. The application of tax is universal. Taxes are applied in development purposes to benefit everybody.

Article 210 calls for equality of treatment of everyone, including state officers, when it comes to the application and implementation of taxation under the new Constitution. To accord or grant some state officers greater weight, recognition or respect than others for any reason is in my humble opinion discriminatory and offensive to the letter and spirit of the Constitution. It is also an attempt to degrade, subvert and destroy the sovereign will of the citizens of the country.

I am aware the Constitution permits positive discrimination but I am confident to say that the Constitution has not permitted the route employed by the members of the National Assembly to escape their tax responsibility. It matters not that the executive agrees or countenanced their actions or omissions; such an agreement between the executive and the legislature amounts to deceit and deception which flies in the face of the clear provisions of the Constitution. In my view, the executive cannot donate an illegal or unlawful benefit and if it does, it is an act done in violation or contravention of the clear provisions of the Constitution, notwithstanding the consequences of the contravention.

Equally, parliament or parliamentarians are not entitled to accept an unlawful advancement of monies belonging to the citizens of this country.

The bottom line is that taxation to all public officers came into operation on 27th August 2010. No party can postpone or refuse or delay the implementation of a Constitutional obligation.

The state has only one choice when it comes to implementation and application of taxation to public officers. It must obey the Constitution by enforcing and applying the clear provisions of the Constitution. If any of its agents makes the mistake of failing to honour the said constitutional obligation, the party must immediately make amends rectifying the error by remitting any taxes that have not been paid. This is the legal position that the 1st Respondent ought to have taken in this petition.

Any provision of the National Assembly Remuneration Act, Chapter 5 of the Laws of Kenya in so far as it is in conflict with Article 210 of the Constitution of Kenya, 2010, is unconstitutional and in breach of the sovereign will of the people of Kenya.

Having addressed my mind to all the issues raised, it is my considered view that the petition has merit. It is hereby allowed with costs to the Petitioners as against the Respondents.

DATED and SIGNED this 17TH day of JANUARY 2013

M. WARSAME, J.A.

SIGNED and DELIVERED this 17TH day of JANUARY 2013

W.K. KORIR, J.