Case ID:179922

Mary Wanjiru Kinyua v Commissioner of Investigations & Enforcement [2021] eKLR

Case Metadata

Case Number:

Tax Appeal E116 of 2021

Parties:

Mary Wanjiru Kinyua v Commissioner of Investigations & Enforcement

Date Delivered:

30 Jul 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Ruling

Judge(s):

David Amilcar Shikomera Majanja

Citation:

Mary Wanjiru Kinyua v Commissioner of Investigations & Enforcement [2021] eKLR

Case History:

Being an appeal against the judgment of the Tax Appeals Tribunal at Nairobi dated 18th June 2021 in Tax Appeal No. 395 of 2019

Court Division:

Civil

County:

Nairobi

History Docket No:

Tax Appeal 395 of 2019

History County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CORAM: D.S. MAJANJA J.

TAX APPEAL NO. E116 OF 2021

BETWEEN

MARY WANJIRU KINYUA ..........................................................................APPELLANT

AND

COMMISSIONER OF INVESTIGATIONS AND ENFORCEMENT....RESPONDENT

(Being an appeal against the judgment of the Tax Appeals Tribunal at Nairobi dated 18

th

June 2021 in Tax Appeal No. 395 of 2019 )

RULING

1. On 18

th

June 2021, the Tax Appeals Tribunal (“the Tribunal”) dismissed the Appellant’s appeal and affirmed the Commissioner’s tax assessment of Kshs. 163,897,497.00 it issued to the Appellant. The Appellant, having been dissatisfied with this decision, has lodged an appeal to this court. The Appellant has also moved the court by the Notice of Motion dated 5

th

July 2021 in which she seeks a stay of execution and enforcement of the Tribunal’s judgment and that the Agency Notice dated 7

th

June 2021 imposed on the Appellant’s account with Equity Bank be lifted, pending hearing and determination of the appeal. The application is supported by the grounds set out on its face and the Appellant’s affidavit sworn on 21

st

June 2021.

2. The Respondent (“the Commissioner”) has opposed the application through the Grounds of Opposition dated 21

st

July 2021. The parties have also filed brief written submissions in support of their respective positions.

3. The jurisdiction of this court to grant orders of stay pending appeal under

Order 42 Rule 6

of the

Civil Procedure Rules

in order to secure the substratum of the appeal is not in doubt. The power to grant stay pending appeal is discretionary and must be exercised in such a way that the appeal is not rendered nugatory. It is to be exercised having regard to the circumstances of the case and having regard to the fact that the Appellant is entitled to exercise her statutory right of appeal while the Commissioner is entitled to the fruits of its judgment, in this case to collect the taxes to be paid by the Appellant (see

Keroche Breweries Limited v Commissioner of Domestic Taxes

ML HC ITA E012 of 2020 [2020] eKLR,

and

Superior Homes (Kenya) Limited v Musango Kithome

MKS HC Civil Appeal No. 91 of 2017 [2018] eKLR

).

4. I have considered the respective arguments put forth by both sides. The Commissioner posits that should this Court be convinced to grant the Appellant stay; this Court should direct the Appellant to provide security for the taxes which have been found due by a competent Tribunal.

5. In the circumstances of this case, I now grant the following reliefs:

(a) An order of stay be and is hereby issued staying execution of the Judgment of the Tax Appeal Tribunal dated 18

th

June 2021 in Tribunal Appeal No. 295 of 2019 and any further enforcement action thereon pending the hearing and determination of this appeal or until further orders of the court.

(b)

In consideration of the stay in (a) above, the Appellant shall provide a Bank Guarantee for KES. 10,000,000.00 from a reputable bank in favour of the Respondent within thirty (30) days from the date hereof whereupon the Agency Notices issued by the Respondent shall be lifted unconditionally.

(c)

In default of compliance with the terms aforesaid, the order of stay shall stand discharged.

(d)

The costs of this application shall be in the appeal.

(e)

The court shall adjourn to issue directions for the hearing and determination of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY 2021.

D. S. MAJANJA

JUDGE

Mr Kabugu instructed by Kabugu and Company Advocates for the Appellant.

Mr Wairire, Advocate instructed by Kenya Revenue Authority for the Commissioner of Investigations and Enforcement.