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Supreme CourtDismissedPetition E006 of 2025· [2026] KESC 56 (KLR)

Matindi v National Assembly & 4 others

Supreme Court of Kenya
17 July 2026
11,487 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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Kenya's Supreme Court upheld a tax exemption for Japanese firms under a Kenya-Japan financing deal, ruling the gazette notice needed no public participation.

What this practically means

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Executive summary

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The Supreme Court dismissed an appeal by a public-spirited litigant challenging Legal Notice No. 15 of 2021, by which the Cabinet Secretary for the National Treasury, under section 13(2) of the Income Tax Act, exempted Japanese companies, consultants and employees from income tax on income derived from sixteen Kenya-Japan financing agreements. The High Court had quashed the Notice as ultra vires Articles 27 and 210, declared section 13(2) unconstitutional to that extent, and held that tax waivers require legislation passed as a money bill after public participation. The Court of Appeal reversed, holding the delegation valid, the Notice executive rather than a statutory instrument, and that the unconstitutionality of section 13(2) had not been pleaded. The Supreme Court, in a unanimous judgment, affirmed the Court of Appeal. It held the Notice was administrative in character, not a statutory instrument under section 2 of the Statutory Instruments Act, and so not subject to public participation under section 5; that the tabling, Committee scrutiny and adoption process complied with section 13(3) of the Income Tax Act and the Statutory Instruments Act; and that the discrimination claim failed because it was not specifically pleaded and the appellant did not prove it on the balance of probabilities, the proper target being the bilateral agreements themselves. The Court articulated a test distinguishing legislative from administrative character in statutory instruments. Each party was ordered to bear its own costs, and the security for costs was ordered refunded. The judgment binds all lower courts on the characterisation test and on the scope of Article 163(4)(a) jurisdiction.

Key legal issues

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01

Whether Legal Notice No. 15 of 2021 was a statutory instrument subject to public participation

Holding

The Legal Notice was administrative in nature, not a statutory instrument under section 2 of the Statutory Instruments Act, and not subject to public participation under section 5 of that Act.

Reasoning

The Court distinguished legislative from administrative character. The Notice merely informed the public of the implementation of bilateral Financing Agreements; the CS Treasury acted within delegated authority under section 13 of the Income Tax Act. It created no rule, order or regulation of wide application, so the procedure the appellant demanded was not triggered. The Court of Appeal's finding was affirmed.

02

Whether due process was adhered to in approving the Legal Notice

Holding

The necessary steps under section 13 of the Income Tax Act read with the Statutory Instruments Act were adhered to by the National Assembly.

Reasoning

The Notice was presented to the Committee on Delegated Legislation with an explanatory memorandum under section 11; the Committee met the CS under section 16, raised concerns about discrimination and the legal status of the agreements, and the CS explained the benefits outweighed the tax foregone. The report was tabled and adopted on 19th May 2021.

03

Whether the tax waiver was discriminatory

Holding

The discriminatory nature of the financing agreements was not specifically pleaded and the appellant did not prove his case on the balance of probabilities; the agreements, not the Notice, should have been challenged.

Reasoning

The burden lay on the appellant to prove discrimination on the balance of probabilities. The Notice contained no specific terms; the extent of the waivers would have been canvassed in a challenge to the bilateral agreements' terms, which the appellant had not seen. Hansard showed the exemptions were standard Japanese policy and the implementing body stated benefits outweighed the reliefs.

p. 20
04

Jurisdiction under Article 163(4)(a)

Holding

The Court had jurisdiction because the dispute involved interpretation and application of Articles 10, 94, 95, 118 and 210 of the Constitution, central to both courts below.

Reasoning

Relying on Samuel Kamau Macharia and Lawrence Nduttu, the Court confirmed jurisdiction is conferred by the Constitution or legislation and that an appeal under Article 163(4)(a) must challenge the constitutional interpretation or application the Court of Appeal used to dispose of the matter.

p. 12

Legal principles established

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  • A statutory instrument has a legislative character if it varies or repeals general laws or rules of wide application affecting the public at large, and an executive or administrative character if it guides the implementation of standards in law and policy.
  • A legal notice is a legislative document made under delegated authority and published in the Gazette through which binding rules, exemptions or other statutory measures are formally promulgated; a statutory instrument becomes effective once published as a legal notice.
  • Tax exemptions can arise only from primary legislation enacted by Parliament, but Parliament may constitutionally delegate the administrative implementation of such exemptions to an executive authority.
  • For Supreme Court appellate jurisdiction under Article 163(4)(a), the appeal must challenge the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter.

Court orders

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  1. 1.The Petition of Appeal dated 13th February 2025 and filed on 24th February 2025 lacks merit and is hereby dismissed
  2. 2.Each party shall bear its costs of the appeal
  3. 3.The sum deposited as security for costs upon lodging of this appeal be refunded to the depositor

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 1(3), 2(5), 2(6), 10(1), 10(2), 10(2)(a), 27, 52, 94(1), 94(4), 94(5), 94(6), 95, 114(3), 118(1), 118(1)(b), 163(4)(a), 201(a), 210(1), 210(2), 211, 260
  • Income Tax Act, Cap 470Sections 13(2), 13(3), First Schedule Paragraph 27
  • Statutory Instruments Act, Cap 2ASections 2, 5, 5A, 6, 7 to 9, 11, 13, 14, 16, 22(1)
  • Fair Administrative Action ActSection 5
  • Treaty-Making and Ratification Act, Cap. 4DSections 7 to 12, 15
  • Public Finance Management ActGeneral
  • Kenya Revenue Authority ActSections 5, Part I of the First Schedule
  • Revision of Laws ActSection 6
  • Office of the Attorney General ActSections 18, 32
  • Public Procurement and Asset Disposal Act, 2015General
  • National Assembly Standing OrdersStanding Order No. 210

Cases cited (15)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    SC Application No. 2 of 2011 [2012] eKLR

    Jurisdiction is conferred either by the Constitution or by national legislation.

  • Lawrence Nduttu & 6000 Other v Kenya Breweries Ltd & another
    SC Petition No. 3 of 2012 [2012] eKLR

    Scope of appellate jurisdiction under Article 163(4)(a) - appeal must challenge constitutional interpretation or application used by the Court of Appeal.

  • Republic v Attorney General; Law Society of Kenya (Interested Party); Moriasi (Ex parte)
    Judicial Review Miscellaneous Application 364 of 2018 [2019] KEHC 7013 (KLR)

    Distinction between executive/administrative directions and instruments of a legislative character that are statutory instruments.

  • Law Society of Kenya v Attorney General & 2 Others
    High Court Petition No. 39 of 2013 [2013] eKLR

    Delegated legislation is permissible where Parliament has conferred such authority and retained oversight.

  • Institute of Social Accountability & another v National Assembly & 3 others; Commission for the Implementation of the Constitution (Interested Party)
    High Court Petition No. 71 of 2013 [2015] KEHC 6975 (KLR)

    Parliament may delegate legislative power provided it retains supervisory control.

  • British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party)
    SC Petition No. 5 of 2017 [2019] KESC 15 (KLR)

    Nature and extent of public participation depends on the character of the legal instrument; RIS issues fall outside Article 163(4)(a) jurisdiction.

  • Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
    High Court Constitutional Petition No. 159 of 2018 & 201 of 2019 (Consolidated) [2020] KEHC 10266 (KLR)

    Parameters for public participation in relation to executive decisions.

  • Law Society of Kenya v Office of the Attorney General & another; Kenya Meat Commission (Interested Parties) & another
    [2021] KEHC 9067 (KLR)

    Adoption of the Ramogi reasoning on public participation and executive decisions.

  • The Matter of the Principle of Gender Representation in the National Assembly and the Senate
    Advisory Opinion Reference No. 2 of 2012 [2012] KESC 5 (KLR)

    Avoid interpreting broad constitutional values as though they were prescribed normative values.

  • Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae)
    [2024] KESC 63 (KLR)

    Constitutional values and principles are inherently open textured; administrative action is implementation of law, not its creation.

  • Omtatah Okoiti v Head of Public Service & 2 others
    Constitutional Petition No. E031 of 2021 [2024] KEHC 198 (KLR)

    A circular giving guidance on prevailing policy is executive in nature and not a statutory instrument.

  • Law Society of Kenya v Attorney General & 3 others
    Environment and Planning Petition No. 2 of 2023 [2023] KEELC 20682 (KLR)

    A cabinet dispatch communicates a policy position and is not a statutory instrument.

  • Ethics and Anti-Corruption Commission & Another v Tom Ojienda, SC t/a Prof. Tom Ojienda & Associates Advocates & 2 Others
    SC Petition 30 & 31 of 2019 (Consolidated) [2022] KESC 59 (KLR)

    Delimitation of 'administrative action' as relating to management of affairs of an institution or agency.

  • Mitubell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
    SC Petition No. 3 of 2018 [2021] eKLR

    Effect of Article 2(5) and (6) - international law as a source of law in Kenya.

  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    SC Petition 4 of 2012 [2014] KESC 31 (KLR)

    Guiding principles on costs.

On appeal from
Court of Appeal at Nairobi
Civil Appeal No. E326 of 2023, as consolidated with Civil Appeal No. E330 of 2023
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Matindi v National Assembly & 4 others", Case Analysis (2026). Petition E006 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/56/eng@2026-07-17

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