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Court of AppealOtherNot stated in the judgment

Commissioner of Income Tax v Menon [1985] KECA 84 (KLR)

Court of Appeal of Kenya
4 April 1985
9,488 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that High Court tax decisions can be appealed further, because such orders are treated as decrees under the law.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi, delivered on April 4, 1985, on a preliminary objection to the Commissioner of Income Tax's appeal against a High Court decision (Wilkinson-Guillemard J, May 19, 1980) that a sum received from the former East African Community in connection with a Nairobi godown was a capital, not income, receipt and must be excluded from the 1975 assessment. The taxpayer objected that the intended appeal was a third appeal for which no statutory provision existed, either under the Income Tax Act (cap 470) or the Civil Procedure Act (cap 21). Hancox JA, delivering the leading ruling, held that there is no right of appeal apart from statute, but that section 87(3) of the Income Tax Act gives the High Court's order on such an appeal effect as a decree, appealable as of right under section 66 of the Civil Procedure Act; section 93(2) of the Income Tax Act also presupposes an appeal to the Court of Appeal, and section 88's finality provision concerns fiscal finality, not the finality of an appeal. Madan JA, concurring separately, held the local committee to be a quasi-judicial appellate body, the High Court appeal the first appeal, and a further appeal expressly provided for under section 72(1) of the Civil Procedure Act; he declared Sanga v Baya wrongly decided and reaffirmed his stance in Munene. Platt Ag JA dissented, holding that cap 470 contains no provision for a third appeal and that section 93(2) has lost its lynch pin. By majority the objection was dismissed with costs and the appeal proceeds; the decision below was not itself disturbed. The case title, number and citation are not stated in the judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal lies from a decision of the High Court in an income tax appeal to the Court of Appeal, the objection being that the intended appeal is a third appeal for which no statutory provision exists
  2. 2.Whether an order of the High Court on an income tax appeal is a decree appealable under the Civil Procedure Act
  3. 3.Whether the local committee is a court or an administrative tribunal, and thus whether the appeal to the High Court is a first, second or third appeal
  4. 4.Whether section 88 of the Income Tax Act, making an assessment on appeal final and conclusive, bars a further appeal

Key legal issues

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01

Whether a right of appeal to the Court of Appeal exists in income tax appeals from the High Court

Holding

By majority (Hancox and Madan JJA) the Court of Appeal has jurisdiction to hear the appeal; the preliminary objection is dismissed.

Reasoning

Hancox JA held the High Court order has statutory effect as a decree under section 87(3) and is appealable under section 66 of the Civil Procedure Act; Madan JA held the appeal lies under section 72(1) of the Civil Procedure Act and is supported by section 93(2) of the Income Tax Act. Platt Ag JA dissented, finding no statutory provision for a third appeal. The majority result is that the objection fails.

p. 9
02

Character of the order of the High Court in an income tax appeal

Holding

The order has effect as a decree in the full sense, not merely for enforcement of the tax.

Reasoning

Section 87(3) of the Income Tax Act statutorily deems the High Court's order on an appeal to be a decree. Hancox JA rejected the taxpayer's narrow reading confining the deeming provision to collection and enforcement, holding the decree is appealable as of right, and that Parliament cannot have intended by the 1974 Act silently to remove a right of appeal previously enjoyed.

p. 4
03

Status of the local committee and counting of appeals

Holding

The local committee is a quasi-judicial appellate body, not a court; the appeal to the High Court is therefore the first appeal and the appeal to the Court of Appeal is not a third appeal from a court (Madan JA), or alternatively is a third appeal expressly provided for under section 72(1).

Reasoning

Madan JA rejected the characterisation of the local committee process as a mere reference to an administrative tribunal: it is set up by statute, its powers and procedure are prescribed by rules, and it is bound by natural justice. The word 'second appeal' in the marginal note to section 72(1) of the Civil Procedure Act is not a numerical limitation but means a further appeal from the High Court.

p. 6
04

Permissibility of consulting prior legislation to construe the Income Tax Act (cap 470)

Holding

It is permissible to examine the historical setting and predecessor statutes to ascertain whether a right of appeal survived the 1974 legislation.

Reasoning

The Attorney-General urged the court to confine itself to the four corners of the current Act, invoking Cape Brandy Syndicate. The court accepted that in a taxing Act one looks only at what is clearly said, but agreed with counsel that in case of uncertainty a court may look at the historical setting of an Act and the earlier East African legislation to see how the previous right of appeal was conferred.

p. 10

Legal principles established

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  • There is no right of appeal apart from statute; a right of appeal must be expressly granted by statutory authority and cannot arise by implication or inference.
  • Under section 87(3) of the Income Tax Act an order of the High Court on an appeal from the local committee has effect as a decree and is appealable as of right to the Court of Appeal under the Civil Procedure Act.
  • The finality of an assessment under section 88 of the Income Tax Act is fiscal finality for collection purposes and does not bar a further appeal; finality of assessment is not to be equated with the finality of an appeal.
  • A right of appeal need not be contained in the substantive Act itself; it may exist in general legislation such as the Civil Procedure Act (Madan JA, concurring).

Court orders

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  1. 1.Preliminary objection of the taxpayer dismissing the appeal as incompetent is dismissed with costs; the appeal to proceed to hearing

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

majority

Wrote the judgment

Delivered the leading ruling holding that the order of the High Court on an income tax appeal has effect as a decree under section 87(3) of the Income Tax Act and is appealable as of right under section 66 of the Civil Procedure Act; the preliminary objection fails.

For these reasons there exists in my judgment a right of appeal from the High Court to this court which is expressly conferred by statute.p. 5
concurring

Wrote the judgment

Wrote separately. Held that the appeal to the local committee is a genuine appeal, that the High Court appeal is the first appeal, and that a further appeal lies to the Court of Appeal under section 72(1) of the Civil Procedure Act and section 93(2) of the Income Tax Act. Asserted that Sanga v Baya was wrongly decided and reaffirmed his Munene approach to the court's jurisdiction.

For these reasons I hold that there is jurisdiction in this court to hear the appeal which is before us.p. 7
dissenting

Wrote the judgment

Dissented. Held that the Income Tax Act (cap 470) makes no provision for an appeal from the High Court to the Court of Appeal, that section 93(2) is a slavish repetition of former provisions without its lynch pin, and that section 72 of the Civil Procedure Act as interpreted in Sanga v Baya does not permit a third appeal; the preliminary objection should be upheld.

Section 72 as interpreted by Sanga v Baya, does not provide for such a third appeal. Therefore the result is that there is no jurisdiction in this court to hear this appeal.p. 13
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Section 68 of the Constitution (as then in force) read with section 72(1)/section 66 of the Civil Procedure Act (cap 21) and sections 87(3) and 93(2) of the Income Tax Act (cap 470)

Relief refused

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Taxpayer's preliminary objection that the appeal was incompetent as a third appeal

Majority held a statutory right of appeal to the Court of Appeal exists

p. 5

Costs

Objection dismissed with costs (Platt Ag JA, dissenting, would have dismissed the appeal with costs to the respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I would therefore dismiss the objection of the taxpayer that this appeal is incompetent, [with costs].
p. 5Disposition - preliminary objection dismissed
For these reasons I hold that there is jurisdiction in this court to hear the appeal which is before us.
p. 7Madan JA concurring - jurisdiction affirmed
There is thus express statutory provision for a third appeal to the Court of Appeal.
p. 7Statutory basis for further appeal
I am of the view that notwithstanding the decision in Sanga v Baya [1973] EA 312 to which we were referred, a third appeal lies to the Court of Appeal under the provisions of section 72(1)
p. 7Sanga v Baya departed from
The right of appeal to this court does not alter the finality of the assessment, whether that finality is achieved by an appeal to the High Court or by an appeal to this court. It is not to be equated with the finality of an appeal.
p. 4Finality of assessment versus finality of appeal

Issues in the judgment

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minor

The judgment nowhere states the case title, appeal number or citation of the appeal before the court; the parties are identified only as the Commissioner of Income Tax and an unnamed taxpayer.

material

The bench is internally divided on the ratio and on a binding precedent: Madan JA declares Sanga v Baya wrongly decided, while Platt Ag JA declines to depart from it without a proper application.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Commissioner of Income Tax v Menon [1985] KECA 84 (KLR)", Case Analysis (1985). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/84/eng@1985-04-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.