This archive report was first published on 27 April 2020.
On April 27, 2020, the Court of Appeal restored a section of the Tax Procedures Act that gives the Kenya Revenue Authority (KRA) powers to attach property and seize documents of suspected tax cheats.
The court agreed with KRA that the sections of the Tax Procedures Act, which were nullified two years ago, should be subjected to a second opinion before the law is amended.
However, the judges barred KRA from arresting Dr. Robert Ayisi, a former Nairobi County secretary, for failing to furnish its officers with documents they had requested.
The ruling came after Justice George Odunga declared sections 44(1) and (2), 60(10 and (3), and 59(4) of the Tax Procedures Act, 2015, unconstitutional in May 2018, saying it violated Article 31(b) of the Constitution, which guarantees people's right not to have their possessions seized.
The three sections declared unconstitutional are key anchors of the Tax Procedures Act that gave the KRA power of search and seizure, as well as admissibility of evidence.
According to the court, the sections empowered the KRA to seize excisable goods that have been moved, altered without permission of the commissioner, and those goods whose owners make or produce false declaration or have unlawfully obtained excise duty refund.
Section 60(1) empowered the KRA to have full access to a premise, documents, and data storage for the purpose of administering a tax law.
But KRA appealed against the decision, saying the ruling had crippled its mandate and reaching projected revenue targets might be difficult.
“From our own analysis of the matter and as demonstrated above, this is a unique case that has public interest bearing on the mandate of the applicant as a tax collection agency on behalf of the people of Kenya,” Justice Martha Koome, Fatuma Sichale, and Jamila Mohammed said.
