Kenya Revenue Authority & 3 others v Kinoti & 25 others; Sanga & 2 others (Interested Parties) (Civil Application E187 & E188 of 2022 (Consolidated)) (22 June 2023) (Ruling) (with dissent - F Sichale, JA) [2023] KECA 1568 (KLR)
The bottom line
#The Court of Appeal refused to pause the High Court judgment barring police from drafting charge sheets, finding the ODPP had fully taken over with no disruption to justice.
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 intended appeals by KRA and by the IG, DCI and AG are arguable under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether, if the orders sought (stay of execution of the High Court judgment) are not granted, the intended appeals would be rendered nugatory
Key legal issues
#Whether KRA's intended appeal, challenging the declaration that section 107 of the Tax Procedures Act is unconstitutional, would be rendered nugatory without a stay
No. The ODPP had taken over the prosecution of all tax-related cases and had the capacity and training to prosecute them; KRA can continue investigating while the ODPP prosecutes.
KRA asserted that 147 tax evasion cases worth about Kshs 11 billion would be paralysed and revenue lost. The ODPP swore unchallenged evidence that it had taken over pending tax prosecutions, had prepared for new ones, had experienced no delays, and had prosecutors trained in tax matters across all 47 counties. KRA did not displace that evidence. Nothing bars the ODPP from seeking advice from KRA. The nugatory limb therefore failed.
Whether the intended appeal by the IG, DCI and AG against the orders barring the National Police Service from drafting and signing charge sheets would be rendered nugatory without a stay
No. The ODPP had already transitioned to preparing and presenting charge sheets in compliance with the judgment; the alleged crisis and threat to national security were abstract, not real.
The applicants claimed the judgment threw criminal proceedings into legal uncertainty and threatened national security. The ODPP's uncontradicted affidavit showed it had implemented the decision, put in place administrative measures, and experienced no delays. The human resource capacity of the ODPP was not denied. The court therefore associated itself with the view that there was no lacuna or gridlock in the criminal justice system, and the nugatory limb was not satisfied.
Whether the intended appeals were arguable
Yes, both intended appeals were arguable, but arguability alone was insufficient as the second limb failed.
Looking at the draft memoranda of appeal, the court found genuine disputes: for KRA, whether section 107 of the Tax Procedures Act contravenes Articles 50 and 157; for the IG, DCI and AG, whether only the DPP has constitutional mandate to commence criminal investigations. The court declined to make definitive findings to avoid embarrassing the bench that would hear the appeals.
Legal principles established
#- The twin test for granting a stay under rule 5(2)(b) of the Court of Appeal Rules: an applicant must demonstrate that the intended appeal is arguable and that it would be rendered nugatory absent the orders; both limbs must be satisfied.
- An arguable appeal need not be one that will necessarily succeed; a single bona fide arguable ground of appeal suffices.
Court orders
#- 1.Dismissal of the notice of motion by KRA dated 2nd June 2022
- 2.Dismissal of the notice of motion by the IG, DCI and AG dated 2nd June 2022
- 3.Costs of the applications to be in the appeal/intended appeals
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
Sichale, JA wrote separately, agreeing the appeals were arguable but differing from the majority on the nugatory limb, finding it satisfied in favour of stay; however, being in the minority, she deferred to the orders proposed by Musinga, P.
I am equally satisfied that the second limb has been satisfied. However, as my views are that of a minority, the orders of the court shall be as proposed by Musinga, PCA.p. 18
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition No. E495 of 2021
- Jurisdiction invoked
- Article 164(3) of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act, and rule 5(2)(b) and 42 of the Court of Appeal Rules, 2010
- Consolidated with
- Civil Application No. Nai. E187 of 2022, Civil Application No. Nai. E188 of 2022
Relief refused
#Stay of execution of the High Court judgment and consequential orders sought by the IG, DCI and AG
The applicants satisfied only the arguability limb and failed the nugatory limb; the ODPP had already implemented the judgment with no gridlock in the criminal justice system.
Suspension of the declaration that section 107 of the Tax Procedures Act is unconstitutional sought by KRA
The ODPP had taken over prosecution of tax-related cases and had capacity, so no loss of revenue rendering the appeal nugatory was demonstrated.
Costs
The costs of the applications shall be in the appeal/intended appeals.
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.
The twin test is that an applicant must demonstrate that the appeal or intended appeal is arguable; and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
In the upshot, I find that the applicants in the two applications have only satisfied the limb on arguability.
As the applicants have not satisfied the second limb for grant of an order under rule 5(2) (b) of this Court's Rules, I would dismiss the notice of motion by KRA which is dated 2nd June 2022 and the notice of motion by the IG, DCI and the AG also dated 2nd June 2022. The costs of the applications shall be in the appeal/intended appeals.
Issues in the judgment
#The date of the impugned High Court judgment is inconsistently stated as 23rd May 2021 in Sichale, JA's reproduction of the KRA motion, whereas everywhere else it is 23rd May 2022.
The revenue figure at stake is stated as Kshs 11 million in Musinga, P's ruling and Kshs 11 billion elsewhere.
The constitutional provision said to authorise section 107 of the Tax Procedures Act is inconsistently cited as Article 147(2) in Sichale, JA's ruling rather than Article 157(12).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority & 3 others v Kinoti & 25 others; Sanga & 2 others (Interested Parties) (Civil Application E187 & E188 of 2022 (Consolidated)) (22 June 2023) (Ruling) (with dissent - F Sichale, JA) [2023] KECA 1568 (KLR)", Case Analysis (2023). Civil Application Nos. Nai. E187 of 2022 and Nai. E188 of 2022 (urging appeal from H.C. Petition No. E495 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1568/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.