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Supreme CourtPartially AllowedPetition 41 of 2019

Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others

Supreme Court of Kenya
4 August 2020
1,682 words in judgment
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AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Supreme Court can hear tax appeals if constitutional interpretation is involved, even if statute is primary.

What this practically means

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The Supreme Court of Kenya ruled that it has the power to hear an appeal from the Court of Appeal in a tax dispute, as long as the case involves interpreting the Constitution. Even if the lower court mainly looked at a tax law, if it also considered a constitutional provision, the Supreme Court can step in. This decision came after some parties argued the appeal was only about tax law, not the Constitution.

Executive summary

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This judgment concerns a preliminary objection by the 1st to 4th Respondents challenging the Supreme Court's jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal from the Court of Appeal. The Respondents argued that the Court of Appeal's decision only interpreted Section 127C of the Customs and Excise Act, not the Constitution, and therefore the appeal did not meet the constitutional threshold. The Petitioners countered that the appeal originated from a constitutional petition in the High Court, where the Respondents had sought declarations that tax assessments were unconstitutional and violated fundamental rights. The Supreme Court examined the record and found that the High Court had interpreted and applied Articles 22, 47, and 210(1) of the Constitution, while the Court of Appeal had interpreted Section 127C of the Customs and Excise Act as read together with Article 210(1) of the Constitution. The Court held that the issues before both lower courts involved the interpretation and application of the Constitution, and that a trajectory of constitutional interpretation was evident in the Court of Appeal's reasoning. Consequently, the Supreme Court dismissed the preliminary objection with costs to the Applicants/Respondents, affirming its jurisdiction to hear the appeal.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction under Article 163(4)(a) of the Constitution to hear and determine the appeal, given that the Respondents contend the appeal does not involve the interpretation or application of the Constitution.

Key legal issues

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Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the Court of Appeal's decision primarily interpreted a tax statute but also considered constitutional provisions.

Holding

The Supreme Court has jurisdiction because the appeal originated from a constitutional petition, and both the High Court and Court of Appeal interpreted and applied constitutional provisions, including Articles 22, 47, and 210(1) of the Constitution.

Reasoning

The Court examined the record and found that the original petition in the High Court sought declarations that tax assessments were unconstitutional and violated fundamental rights. The High Court interpreted Articles 22, 47, and 210(1) of the Constitution. The Court of Appeal, while focusing on Section 127C of the Customs and Excise Act, read it together with Article 210(1) of the Constitution. The Respondents' argument that the Court of Appeal only interpreted the statute was untenable because the constitutional trajectory was evident throughout the proceedings.

Legal principles established

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  • Supreme Court jurisdiction under Article 163(4)(a) requires the appeal to raise a constitutional interpretation or application issue.
  • The constitutional question must have been argued in the High Court and Court of Appeal through normal appeals.
  • A clear 'trajectory' of constitutional reasoning must be visible in the lower courts' decisions.
  • Even if a statute is the main focus, reading it together with a constitutional provision qualifies as constitutional interpretation.
  • The Supreme Court examines the entire court record to decide if it has jurisdiction, not just the final judgment.

Court orders

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  1. 1.The Notice of Motion Application dated 17th December 2019, is hereby dismissed.
  2. 2.The Costs of this Application shall be borne by the Applicants/Respondents.

The bench

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeals No. 164 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Striking out the Petition of Appeal for lack of jurisdiction

The Court found it had jurisdiction because the issues before the High Court and Court of Appeal involved the interpretation and application of the Constitution.

Costs

The Costs of this Application shall be borne by the Applicants/Respondents.

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.

From the above summary, we find little difficulty in concluding that the issues before the High Court as well as the Court of Appeal involved the interpretation and application of the Constitution.
p. 5 Jurisdiction of the Supreme Court under Article 163(4)(a)
The Notice of Motion Application dated 17th December 2019, is hereby dismissed.
p. 5 Final orders dismissing the preliminary objection
The Costs of this Application shall be borne by the Applicants/Respondents.
p. 5 Costs order

Key timeline

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2019-12-17
Respondents file Notice of Motion challenging Supreme Court's jurisdiction to hear the appeal.
2025-03-25
Supreme Court dismisses the preliminary objection, affirming it has jurisdiction.

Practical implications

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For lawyers

Invoke Supreme Court jurisdiction strategically

When appealing tax or other statutory cases, ensure constitutional arguments are clearly raised and reasoned in the High Court and Court of Appeal. Even if the statute is central, link it to a constitutional provision (e.g., Article 210 on taxation) to preserve the path to the Supreme Court. Document the constitutional trajectory in your submissions.

For businesses

Tax disputes can reach Supreme Court

If your business faces a tax assessment you believe violates constitutional rights (e.g., fair administrative action under Article 47), you can challenge it all the way to the Supreme Court. Ensure your legal team frames the case as a constitutional petition from the start, not just a tax objection, to keep the highest court available.

For individuals

Your constitutional rights in tax matters

If you believe a tax demand violates your rights (like the right to fair administrative action), you can file a constitutional petition in the High Court. This ruling confirms that such cases can eventually be heard by the Supreme Court, even if the tax law itself is also interpreted. Don't let the government argue it's 'just a tax issue'.

Frequently asked questions

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What is Article 163(4)(a) of the Kenyan Constitution?+

It gives the Supreme Court power to hear appeals from the Court of Appeal if the case involves interpreting or applying the Constitution. This means not every case can go to the Supreme Court—only those with a real constitutional question.

Can I appeal a tax case to the Supreme Court in Kenya?+

Yes, but only if your case also raises a constitutional issue. For example, if you argue a tax law violates your rights under the Constitution, the Supreme Court can hear it. A pure tax dispute without constitutional arguments cannot go that far.

What is a preliminary objection in Kenyan courts?+

It is a legal argument made at the start of a case, claiming the court has no power to hear it. If successful, the case is dismissed without going into the main issues. In this case, the objection was about the Supreme Court's jurisdiction.

How does the Supreme Court decide if it has jurisdiction in Kenya?+

The Court looks at the entire record from the lower courts. It checks whether the original petition raised constitutional issues, and whether the High Court and Court of Appeal actually interpreted constitutional provisions. If there is a clear constitutional thread, the Supreme Court takes the case.

Cite this brief

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Cite this brief

Caselaw, "Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others", Case Analysis (2020). Petition 41 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/75/eng@2020-08-04

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