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Court of AppealPartially AllowedCivil Appeal No. 112 of 2015

Njoya v Attorney General & another [2017] KECA 264 (KLR)

Court of Appeal of Kenya
29 September 2017
3,198 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that the public has a right to know whether MPs pay tax on their salaries, overriding tax confidentiality laws.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Nambuye and Kiage, JJ.A) allowed the appellant's appeal against the dismissal by Lenaola, J of a constitutional petition challenging the constitutionality of Section 125 of the Income Tax Act and KRA's failure to collect or disclose tax paid by Members of Parliament. The appellant had sought declarations that Section 125 contradicted Article 35(1)(a) of the Constitution, that KRA was under a duty to provide information and to collect taxes from MPs, an order of mandamus, and compensation by way of surcharge. The High Court had dismissed the petition on the basis that the petitioner failed to satisfy the conditions for relief under Article 35(1)(b). The Court of Appeal held that the right of access to information is critical to transparent and accountable government and enables other rights. It found that Members of the 10th Parliament had taken refuge under Section 125 to avoid paying tax on their full salaries and perks, and that KRA had violated Articles 209 and 210 of the Constitution by failing to collect taxes, having a clear statutory obligation under Section 5(1)(a) of the KRA Act read with Articles 201, 210 and 230. Relying on Anarita Karimi Njeru, Mumo Matemu, Timothy Njoya (Warsame J, unappealed) and South African authority, the Court held the judge was plainly wrong and his decision resulted in misjustice. The appeal was allowed, the High Court judgment set aside, the amended petition granted, with the disclosure limited to taxes on MPs' salaries, allowances and emoluments, thirty days for compliance, and costs of the appeal and petition to the appellant. This decision binds subordinate courts and the High Court on the primacy of Article 35 over statutory tax confidentiality.

Questions the Court framed

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

  1. 1.Whether the appellant's right of access to information under Article 35 of the Constitution was violated
  2. 2.Whether Section 125 of the Income Tax Act is unconstitutional to the extent that it contradicts Article 35(1)(a) of the Constitution
  3. 3.Whether KRA is under a statutory and constitutional duty to collect taxes from Members of Parliament and to disclose whether such taxes were paid

Key legal issues

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01

Whether Section 125 of the Income Tax Act, protecting confidentiality of tax information, unconstitutionally restricts the Article 35 right of access to information

Holding

Yes, to the extent it was used to deny the appellant information on whether Members of Parliament paid tax on their emoluments; the right to information prevails as read with Articles 201, 209 and 210

Reasoning

The Court held the right to information is critical to transparent and accountable government and enables other rights. Members of the 10th Parliament took umbrage under Section 125 to avoid payment of taxes on their full salary and perks, and the resulting denial of information violated Article 35 read purposively with Articles 201, 209 and 210. Confidentiality of tax information, though globally recognized, cannot shield a constitutional violation.

p. 6
02

Whether KRA violated the Constitution in relation to taxation of Members of Parliament

Holding

Yes; Articles 209 and 210 imply no person shall be exempted from taxation and KRA breached them by failing to enforce collection

Reasoning

Taking judicial notice of the constitutional aspiration for accountable government which eschewed tax exemption for MPs, the Court found KRA violated Articles 209 and 210. The obligation to collect taxes from state officers rests on KRA under Section 5(1)(a) of the KRA Act notwithstanding Section 37 of the Parliamentary Service Act.

p. 5
03

The standard of proof in constitutional petitions

Holding

A petitioner must plead and demonstrate with precision the provision violated and the manner of violation

Reasoning

Endorsing Anarita Karimi Njeru and Mumo Matemu, the Court reaffirmed the precision requirement, though it found on the facts that the appellant's petition met that threshold and that the judge was plainly wrong to dismiss it.

p. 6

Legal principles established

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  • A petitioner alleging violation of constitutional rights must demonstrate, with a reasonable degree of precision, the provision violated and the manner of violation (Anarita Karimi Njeru rule, endorsed as binding).
  • Any law inconsistent with the Constitution is void to the extent of the inconsistency, and no statute (including confidentiality provisions such as Section 125 of the Income Tax Act) may defeat the constitutional right of access to information.
  • KRA has a clear statutory and constitutional obligation to collect taxes due from all state officers including Members of Parliament under Section 5(1)(a) of the KRA Act read with Articles 201, 210 and 230 of the Constitution.

Court orders

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  1. 1.The judgment and decree of the High Court is set aside and substituted by a decree granting the amended petition as prayed
  2. 2.The information to be released shall relate only to taxes paid or payable on the salaries, allowances and emoluments of Members of Parliament and not their private incomes
  3. 3.The time for compliance under prayer A shall be thirty (30) days
  4. 4.The appellant shall have the costs of this appeal and of the petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi (Constitutional and Human Rights Division)
H.C. Petition No. 479 of 2013
Jurisdiction invoked
First appellate jurisdiction over the High Court's dismissal of a constitutional petition (Article 164 of the Constitution; memorandum of appeal with 33 grounds)

Relief refused

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Information relating to the private incomes of Members of Parliament beyond salaries, allowances and emoluments

The Court limited the scope of the information to be released to taxes on parliamentary emoluments only

p. 6

Costs

The appellant shall have the costs of this appeal and of the petition.

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.

The appeal succeeds and is therefore allowed. The judgment and decree of the High Court is set aside and substituted by a decree granting the amended petition as prayed
p. 6Final orders - disposal of appeal
the information to be released shall relate only to the taxes paid or payable on the salaries allowances and emoluments of Members of Parliament and not their private incomes
p. 6Scope of information disclosure
the right to information is critical to the attainment of transparent and accountable government and is an enabler to the exercise and enjoyment of other rights by citizens
p. 4Importance of the right of access to information
This violated his rights under Article 35 as read with Articles 201, 209 and 210 of the Constitution purposively interpreted.
p. 6Violation of Article 35
it is incumbent on the petitioner, in order to succeed, to demonstrate with a reasonable degree of precision the provision of the Constitution which have been violated with regard to it and the manner of such violation
p. 4Standard of proof in constitutional petitions
payment of taxes was 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
p. 6Taxation as constitutional obligation

Issues in the judgment

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minor

The judgment does not set out the appellant's 33 grounds of appeal in full nor the specific holding of Warsame J's Petition No. 137 of 2011 beyond summary reference; also the Court allowed a petition alleging violation of Articles 201, 209 and 210 despite framing the sole issue as violation of the right of access to information, a slight mismatch between the framed issue and the grounds on which the appeal was allowed.

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, "Njoya v Attorney General & another [2017] KECA 264 (KLR)", Case Analysis (2017). Civil Appeal No. 112 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/264/eng@2017-09-29

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