Pevans East Africa Limited v Betting Control & Licensing Board & 2 others; Safaricom Limited & another (Intrested Parties) [2021] KECA 847 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a betting licence cannot be renewed without proof of tax payment, dismissing Pevans East Africa's challenge against the regulator.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant demonstrated compliance with the legal requirements for the renewal of its licence
- 2.Whether there was breach of Article 47 of the Constitution
- 3.Whether Section 5(3) of the Betting Lotteries and Gaming Act shielded the 1st respondent from complying with its obligations under Article 47 of the Constitution
- 4.Whether the respondents' actions violated the appellant's rights under Article 27 of the Constitution
Key legal issues
#Whether the appellant complied with the legal requirements for renewal of its licence, particularly proof of tax payment
Proof of payment of gaming and betting tax is a relevant material consideration and prerequisite prior to grant or renewal of a licence; the appellant's pending tax disputes with KRA cast doubt on its tax compliance status.
Relying on Section 5(2) of the Betting, Lotteries and Gaming Act and the preamble to the Act, the Court held the Board may require such declarations or further information as it deems necessary. The Act does not define what investigations are necessary, but proof of tax payment falls squarely within the Act's purpose of imposing and recovering tax on betting and gaming. The Court associated itself with the trial judge's findings and saw no reason to interfere.
Whether there was breach of Article 47 of the Constitution (right to fair administrative action and reasons)
No breach: the appellant was provided with reasons for the refusal by the letter dated 1st July 2019, and the absence of reasons before filing caused no demonstrated prejudice.
The petition was filed on 27th June 2019 and reasons were served on 1st July 2019, four days later. The Court, adopting the trial judge's reasoning, held that the appellant had not demonstrated that the delay prejudiced its right to petition. The appellant had delayed providing required information and was, in the Court's view, the author of its own misfortunes. The letter of 1st July 2019 cited pending investigations into compliance with set licensing conditions as the reason.
Whether Section 5(3) of the Betting, Lotteries and Gaming Act shielded the Board from its Article 47 obligations
Nothing turns on the point because reasons were in fact given; the trial judge's reliance on the Act, including the exemptions in section 6, could not be faulted on these facts.
Having found that the Board did provide reasons for the refusal, the Court saw no basis to disturb the judge's finding. The judge had reasoned that where reasons involve intelligence reports and security investigations, such information falls within the permitted exceptions under section 6 of the Act, and the question of sufficiency depends on the nature of the exemption claimed.
Whether the respondents' actions violated Article 27 by discriminating against the appellant
No discrimination was proved; differential renewal of licences across companies reflects the regulator's statutory mandate and the allegation remained mere allegation without evidence.
The Court adopted the definition of discrimination in Peter K. Waweru v Republic and the distinction between discrimination and unfair discrimination in Nyarangi v Attorney General, noting that not all distinctions are unlawful; distinctions are legitimate if they pursue a legitimate aim and are reasonable. The mere confirmation that some licences were renewed and others not, without more, did not amount to discrimination, and no evidence of unfair differential treatment was tendered.
Legal principles established
#- Proof of payment of gaming and betting tax is a relevant material consideration and a prerequisite to the grant or renewal of a betting licence under the Betting, Lotteries and Gaming Act, even where the Act does not explicitly define what investigations or information the Board may require.
- A regulator discharging its statutory mandate by renewing some licences and refusing others does not, by that fact alone, discriminate; a party alleging discrimination must tender evidence of unfair or differential treatment.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Petition No. 252 of 2019
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment is expressly a first appeal from the High Court; no specific constitutional/statutory provision is quoted in the judgment)
Relief refused
#Setting aside the High Court's dismissal of the petition challenging the refusal to renew the betting licence
Proof of payment of tax was a relevant material consideration and prerequisite for renewal; reasons were in fact provided and no prejudice was shown; no evidence of discrimination was tendered
A declaration that Article 47 was breached by failure to give reasons
The 1st respondent gave reasons by its letter dated 1st July 2019 and the appellant showed no prejudice from the reasons arriving four days after the petition was filed
A declaration of discrimination under Articles 10, 27(4) and 47
No evidence was tendered that the appellant was treated unfairly or differently from other industry players
Costs
The appeal was dismissed with costs; the appellant was ordered to pay costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, and in light of the above conclusions, we think we have stated enough reasons as to why this appeal is for dismissal. It is hereby dismissed with costs.
we are fully in agreement with the finding by the learned judge that proof of payment of tax was a relevant material consideration and a prerequisite prior to the grant or renewal of a licence
no evidence was provided to show that the absence of reasons prejudiced the appellant in filing the instant petition. Consequently, nothing turns on this point.
The mere fact that the 1 st respondent confirmed having renewed the operating licences for some companies but not others perse does not amount to discrimination within the definition alluded to in the Peter K. Waweru case (supra).
an appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge's finding of fact if it appears either that he failed to take account of particular circumstances or probabilities
Issues in the judgment
#The judgment records the decision as made by 'Mativo, J' but delivered by Makau, J; the coram spelling and party description contain typographical errors ('INTRESTED PARTY', 'were are unable', 'filled' for 'filed'), and the appendix to the Selle quotation is attributed within the quotation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pevans East Africa Limited v Betting Control & Licensing Board & 2 others; Safaricom Limited & another (Intrested Parties) [2021] KECA 847 (KLR)", Case Analysis (2021). Civil Appeal No. 471 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/847/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.