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Monday 8th April

Issue 14/2013

CASE OF THE WEEK


Requirements of a Tax Demand Notice
Geothermal Development Company Limited V Attorney General& 4 Others
High Court at Nairobi
Constitutional and Human Rights Division
Petition No.352 of 2012
D.S. Majanja. J
March 18, 2013
Reported by Andrew Halonyere & Cynthia Liavule
The petitioner brought a petition before the High Court challenging the process in which Kenya Revenue
Authority demanded tax and its subsequent enforcement. The petitioner submitted that the tax demand
notice did not satisfy the requirements of a proper notice consistent with article 47 (1) of the Constitution
thereby infringing its right of fair administrative action.
Issues
1. Whether failure by the Kenya Revenue Authority to disclose the nature, implication and consequences of
non-compliance of the tax demand notice as well as notifying the taxpayer of the avenues of appeal or
review available to it was in violation of fair administrative action afforded by Article 47(1) of the
Constitution.
Constitutional law- fundamental rights and freedoms - right to fair administrative action - tax demand
notice what constitutes a proper notice - whether failure to issue proper demand notice amounted to
violation of right to fair administrative action-Constitution of Kenya, 2010 Article 47(1) Value Added Tax
Act (Cap 476 ) paragraph 9 of the Seventh schedule to the Act
Constitution of Kenya, 2010 Article 47(1) - Every person has the right to administrative action that is
expeditious, efficient, lawful, reasonable and procedurally fair.
The Value Added Tax Act (Cap 476) Paragraph 9, Seventh schedule to the Act- Provision for the
Commissioner of tax to issue a notice of assessment where tax is due and payable from a liable tax payer.
Held
1. Paragraph 9 of the Seventh Schedule to the Value Added Tax Act provided for issuance of Notice of
Assessment notices by the Commissioner of Tax. It did not provide for a specific or mandatory form of
notice. However, that did not exonerate Kenya Revenue Authority from meeting the constitutional
standards set out in article 47(1).
2. All statutory provisions in force had to be read under the beam of the rich values and principles enshrined
under the Constitution of Kenya, 2010.
3. A party dealing with KRA had a legitimate expectation to be served with the Notice of Assessment in the
form that it was usually issued before enforcement of proceedings would commence.
4. As a component of due process, it was important that a party had reasonable opportunity to know the
basis of allegations against it. Elementary justice and the law demanded that a person be given full
information on the case against him and given reasonable opportunity to present a response. That right was
not limited only in cases of hearing as in the case of a court or before a tribunal, but when taking
administrative action as well.
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5. The tax demand letter sent to the petitioner fell short of the requirements of a proper notice in as far as
it failed to disclose its nature, implication and consequences of non-compliance as well as notifying the
taxpayer of the avenues of appeal or review available to it.
6. A notice issued to enforce collection of taxes should have clearly stated to be such a notice, stated the
amount claimed, stated the legal provision under which it was made and drew the taxpayers attention to
the consequences of failure to comply with the law and the opportunity provided by the law to contest the
finding. Such a notice would give the opportunity to any Kenyan to know the case against it and utilise the
legal provisions to contest the decision. The right to fair administrative action and the right of access of
justice enshrined in the Constitution demanded nothing less.
7. The petitioner's rights to fair administrative action afforded by article 47(1) of the Constitution were
violated by issuing the Tax Demand letter and acting upon it to enforce the collection of taxes.
Tax demand letter quashed, respondents (KRA) restrained from collecting taxes from petitioner until
issuance of a proper notice.The respondents to bear costs of the Petitioner's.

View the Full Judicial Opinion

SELECTED NOTICES FROM THE KENYA GAZETTE


Kenya Gazette Vol. CXV No 57 Dated April 5, 2013.
Selected Gazette Notices
Customs Services Department - Corrigenda.
The Registration of Titles Act - Issue of Provisional Certificates.
The Registered Land Act - Issue of New Land Title Deeds.
Probate and Administration.
The Civil Aviation Act - Decisions of the Kenya Civil Aviation Authority on Applications for Air Service
Licences.
The Kenya Power and Lighting Company Limited - Foreign Exchange Rate Fluctuation Adjustment.
The Mining Act - Application for a Special Licence.
The Co-operative Societies Act - Appointment of Liquidator.
The Environmental Management and Co-ordination Act - Environmental Impact Assessment Study Reports,
etc.
Loss of Policies.
Change of Names.
SUPPLEMENT Nos. 52 and 53
Legislative Supplement
LEGAL NOTICE NO.
59 - The Proceeds of Crime and Anti-Money Laundering Regulations, 2013.
60 - The Public Procurement and Disposal (County Governments) Regulations, 2013.
61 - The Insurance Act - Exemption.
GAZETTE NOTICE NO. 4198
CUSTOMS SERVICES DEPARTMENT
CORRIGENDA
CORRECTIONS are made on Gazette Notices No. 1549 of 2013, 1550 of 2013 and 1941 of 2013 by
changing the dates of the auctions from 9th April, 2013 to 16th April, 2013.
The dates of viewing the items have also been changed from 5th April, 2013 and 8th April, 2013 to 12th
April, 2013 and 15th April,2013.
All the other details in the gazette notices remain the same.
Dated the 2nd April, 2013.
JOHN CHANGOLE,
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Deputy Commissioner, Port Operations.


GAZETTE NOTICE NO. 4199
CUSTOMS SERVICES DEPARTMENT
CORRIGENDA
CORRECTION is made on Gazette Notice No. 2317 of 2013 by changing the date of the auction from 9th
April, 2013 to 16th April, 2013.
The dates of viewing the items have also been changed from 5th April, 2013 and 8th April, 2013 to 12th
April, 2013 and 15th April, 2013.
All the other details in the gazette notice remain the same.
Dated the 2nd April, 2013.
JOHN CHANGOLE,
Deputy Commissioner, Port Operations.
GAZETTE NOTICE NO. 4200
CUSTOMS SERVICES DEPARTMENT
CORRIGENDA
CORRECTION is made on Gazette Notice No. 1940 of 2013 by changing the date of the auction from 9th
April, 2013 to 16th April, 2013.
The dates of viewing the items have also been changed from 5th April, 2013 and 8th April, 2013 to 12th
April, 2013 and 15th April, 2013.
All the other details in the gazette notices remain the same.
Dated the 2nd April, 2013.
BENSON CHACHA,
Deputy Commissioner, Mombasa Headquarters.
GAZETTE NOTICE NO. 4172
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED CONSTRUCTION OF COMMERCIAL AND
OFFICE COMPLEX (THE HUB KAREN) ON LR.NO 1159/379-384
& 1159/25 ALONG DAGORETTI ROAD AT KAREN, NAIROBI
COUNTY
INVITATION OF PUBLIC COMMENTS
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National
Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study
Report for the above proposed project.
The Proponent (Azalea Holdings Ltd) intends to construct on a 20 acre plot, a Commercial Complex
comprising: specialist shops; first green supermarket in Kenya, 2000 m 2 central open space (community
and social space), a blend of leisure options (cinema, gym/spa, jogging track, lake with fishing activities,
orchid garden and extensive green areas, amphitheatre etc.), over 1000 vehicle parking, among others.
The anticipated impacts and proposed mitigation measures are set out in the gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 6783900200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O.
Box 30521, Nairobi.
(c) County Director of Environment, Nairobi County.
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The National Environment Management Authority invites members of the public to submit oral or written
comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA,
to assist the Authority in the decision making process of the plan.
B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/1771721
GAZETTE NOTICE NO. 4173
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE CANCER AND CHRONIC DISEASE CENTRE FOR
MOI TEACHING AND REFERRAL HOSPITAL IN ELDORET
INVITATION OF PUBLIC COMMENTS
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National
Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study
Report for the above proposed project.
The Proponent (Moi Teaching and Referral Hospital) intends to construct a modern Cancer Disease Centre in
Eldoret.
The anticipated impacts and proposed mitigation measures are set out in the gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road,P.O. Box 6783900200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O.
Box 30521,Nairobi.
(c) County Director of Environment, Uasin Gishu County.
The National Environment Management Authority invites members of the public to submit oral or written
comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA,
to assist the Authority in the decision making process of the plan.
B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/1771724
GAZETTE NOTICE NO. 4442
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED HASHI ENERGY LIMITED LIQUEFIED
PETROLEUM GAS (LPG) FILLING PLANT ON LAND
REFERENCE: UN-SURVEYED KENYA RAILWAY
CORPORATION LAND IN NANYUKI, KENYA RAILWAY
STATION, INDUSTRIAL AREA.
INVITATION OF PUBLIC COMMENTS
PURSUANT to Regulation 21 of the Environmental Management and Coordination (Impact Assessment and
Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an
Environmental Impact Assessment Study Report for the above proposed project.
The Proponent (Hashi Energy Limited) intends to construct an LPG filling plant at Nanyuki Town, in Laikipia
County. The project involves the installation of an offloading point for LPG Road Tankers, a Manual Cylinder
Bottling Plant, LPG Cylinder loading and offloading area, cylinders storage space, firefighting system and
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related offices.
The anticipated impacts and proposed mitigation measures are set out in the gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 6783900200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O.
Box 30521, Nairobi.
(c) County Director of Environment, Laikipia County.
The National Environment Management Authority invites members of the public to submit oral or written
comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA,
to assist the Authority in the decision making process of the plan.
B. M. LANGWEN,
for Director-General,
MR/1771901 National Environment Management Authority.
Gazette Notice No. 4423
THE KENYA NATIONAL MANAGEMENT AND
COORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
APPLICATION FOR ACCESS PERMIT
PURSUANT to Legal Notice No. 160 on Environmental Management and Coordination (Conservation of
Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006; the
National Environment Management Authority has received applications for Access Permit for the following:
(a) Laura Loyola, 3616 Trousolale Pkway AFH 107 University of Southern California, Department of
Biological Sciences.
(b) Activities: Collection of urine samples from red Colubus Monkey (Procolobus rufomitratus) at Tana River
Primate National Reserve. Specimen analysis will be done in the United States of America.
(c) Akhwale Khayeli Juliah, Jomo Kenyatta University of Science and Technology. P.O. Box 62000 00200,
Nairobi.
(d) Activities: Collection of water and sediment samples from Lake Elementaita. Specimen analysis will be
done at Jomo Kenyatta UniversityJKUAT (Kenya) and at the German Culture Collection Centre DSMZ
(Germany).
(e) Dr. Caspar Schning, Free University Berlin Institute of Biology K nigin -Luise-Strasse 1-3, 14 195,
Berlin, Germany.
(f) Activities: Collection of honey bees, Apis mellifera from Mt.Kenya area. Genetic analysis will be done in
Germany.
Note:
The full documentation of the proposed activities are available for inspection during working hours at
National Environment Management Authority (NEMA) Headquarters, Popo Road, off Mombasa Road, Nairobi.
The Authority is therefore inviting members of the Public to submit Oral and Written comments within
twenty-one (21) days from the date of publication of the notice to the Director General to assist the
Authority in the determination of the application.
GEOFFREY WAHUNGU,
Director General,
MR/1966107 National Environment Management Authority.
Special Issue Gazette Notice No CXV No 58 Dated April 5, 2013
Gazette Notice No. 4448
THE ASSUMPTION OF THE OFFICE OF THE PRESIDENT ACT
(No. 21 of 2012)
THE SWEARING IN CEREMONY OF THE PRESIDENT-ELECT
Notification of a Public Holiday
IT IS notified for the information of general public that pursuant to section 12 (3) of the Assumption of the
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Office of the President Act, 2012, Tuesday the 9th April, 2013, the day the President-elect shall be sworn
in at the Moi International Sports Centre, Kasarani, from 10.00 a.m. to 2.00 p.m., shall be a public
holiday.
Dated the 4th April, 2013.
F. T. KIMEMIA,
Permanent Secretary,
Secretary to the Cabinet and Head of the Public Service.

National Council for Law Reporting


Milimani Commercial Courts
Building,
Ground Floor
P.O Box 10443 - 00100, Nairobi
Kenya.
Tel: (254 020) 2712767, 2719231
Fax: (254 020) 2712694

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