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Whistleblower Email Exposes Judgements, Case Backlogs and Selective Justice In High Court And Tax Appeal Tribunals

Published

3 years ago

on

H.E President Uhuru Kenyatta-

           Kindly note that there enough laws that if enforced by the concerned agencies, especially against errant or negligent officers, corrupt practices will be drastically reduced.

C.C

Kenya Revenue Authority Board Chairman and Members,

Chairman EACC-Retired Archbishop Eliud Wabukala,

Commissioner General Kenya Revenue Authority Mr. Githu Mburu,

The Office of Director of Public Prosecution- Noordin Haji,

Chairperson The Commission on Administrative Justice (CAJ),

DCI- Mr. George Kinoti

Blogger- Cyprian Nyakundi

and

Kenyans…

 * HERE CAJ SHOULD ALSO FULLY ENFORCE THE ACCESS TO INFORMATION ACT. NO. 31 OF 2016

Dear Sirs / Madam,

Judgements, Case Backlogs and Selective Justice.

Summary

Better case and resource, time, management by judges, magistrates and tribunal members will go a long way in effectively and efficiently reducing the tax case backlogs at both the High Court and the tribunal.

In April 2021 the High Court delivered 4 judgements in the tax cases before it while the Tax Appeals Tribunal made 31 determinations. As is routine you can be assured that all those who got unfavourable tribunal rulings will automatically appeal to the High Court so as to simply stall the tax recovery process by KRA for several more years. I wonder what percentage of the taxes sort KRA actually recovers at the end of the drawn out litigation process.

One of the primary duties of a judge is to give a timely verdict in a case or dispute.

The maxim Justice delayed is justice denied means that justice is achieved when there are speedy/ efficient trails and resolution of disputes by judges.

It is the trail judge/ magistrate when controls the litigation process e.g setting hearing dates, allowing (entertaining) adjournments and ultimately delivering a judgement. Therefore it is the judge/ judiciary who is/are responsible for the duration a trial takes. E.g notice the numerous mentions, in High Court cases, in the analysis below. Are they justifiable?

In the Kenyan scenario election, read political, cases are expedited. These, including presidential petitions, are time bound, i.e must be heard and determined within a certain time frame.

Recently we have seen the High Court hear and determine the BBI case in record time probably due to “high public interest” in the matter or is it “high political interest”.

Contrast the above with the slow pace at which the other political cases are handled with mentions, adjournments, petitions being the order of the day. All these happen under the watch of the trial judge.

These are but a few examples:

1) Sharon Otieno’s Family Pleads for Justice Two Years After Her Murder.

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2) Court stops Senator Mithika Linturi’s arrest in Sh530m forgery case | Nation.

3) Governor Obado, his four children in court over Ksh.73M corruption …

4) Former Telkom Workers Wallow in Poverty As Pension Cases drag on in the courts/tribunal for more than 16 years.

5) Court temporarily stops Ksh.58M fraud case against Evans Kidero By Dzuya Walter For Citizen Digital time updated Published on: July 13, 2020 11:00 (EAT)

 6) Monica Kimani murder: Jowie released on Sh2m cash bail – The Star

7) Kiambu Governor Ferdinand Waititu to face charges in graft claim | Nation.

8) 11 months ago, the office of the Director of Public Prosecutions (DPP) said Covid-19 delayed the prosecution of Embakasi East Member of Parliament(MP) Babu Owino in the shooting of Felix Orinda alias DJ Evolve. Also Nairobi’s B club, where the shooting occurred, is popular with Kenya’s gilded classes. Those unfortunate to live within earshot are less keen, and last October won a court ruling revoking its licence. But legal orders matter little to politically connected nightclub owners.

9) Since 29 September 2016, Kapseret MP Oscar Sudi has fake academic papers – EACC

1) High Court 2021 Tax cases summary. Below is a summary of the tax cases handled by the High Court in the month of January- April 2021. 1) Number of cases dealt with in the month. Jan 2021. = 99 Feb 2021 = 109 Mar 2021 = 115

Apr 2021 = 106 2) Number of judgements. Jan 2021 = 2 cases Feb 2021 = 7 cases Mar 2021. = 3 cases

Apr 2021. = 4 cases Jan 2021 judgements. 1) ITA/6/2018 Mars Logistics Ltd Judge J Mativo, 2) ITA/E033/2020 Unga Ltd Judge D.S Majanja. Feb 2021 judgements 1) ITA/E040/2020 Menegai Oil Refineries Ltd D.S Majanja, 2) ITA/E052/2020 Sony Holdings Ltd D.S Majanja, 3) ITA/E042/2020 Sony Holdings Ltd D.S Majanja, 4) ITA/E053/2020 Sony Holdings Ltd D.S Majanja, 5) ITA/E070/2020 Kenafric Bakery Ltd D.S Majanja, 6) ITA/E002/2020 Leah Njeri Njiru D.S Majanja, 7) ITA/E027/2020 Brookhouse Schools Ltd D.S Majanja. Mar 2021 Judgements 1) ITA/E052/2020 Sony Holdings Ltd D.S Majanja Repeated appeared on 26/2/2021 and 31/3/2021. 2) ITA/E004/2020 Equity Group Holding Ltd D.S Majanja 3) ITA/E059/2020 David Ndii Mwangi D.S Majanja

Apr 2021 Judgements. 1) ITA/E112/2020 Bemms Ltd J. Mativo 2) ITA/E091/2020 Golden Acre Ltd Alfred Mabeya posted twice 15/4/2021 and 22/4/2021. 3) ITA/E042/2020 Sony Holdings D S Majanja

3) Other court actions in 2021: a) Mentions Jan. = 90 Feb. =100 Mar = 91

Apr. = 77 b) Hearings Jan. =6 Feb. =7 Mar =3

Apr. =14 c) Directions Jan. =2 Feb. =2 Mar =4

Apr. = 2 d) Rulings Jan. =2 Feb = 0 Mar = 8

Apr. = 4 e) Highlighting of Submissions Jan =2 Feb =2 Mar =3

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Apr. =5 f) Defense Mar = 1 g) Case Management Conference Mar = 2 4) Cases that came up in January-March 2021 that are more that are more than 1 years old. No. Case latest Date Case Ref Year Case Started Company Judge Case Duration

1) 22/01/2021 ITA/24/2017 2017 Guaca Stationers Ltd D S Majanja 3 years+

2) 01/02/2021 ITA3/2017 2017 GulfBadr Grouo K Ltd Elizabeth Tanui 3 years+

3) 24/02/2021 ITA/10/2017 2017 Nakumatt Holding Ltd Alfred Mabeya 3 years+

4) 01/02/2021 ITA13/2017 2017 Oceanfreight EA Ltd Elizabeth Tanui 3 years+

5) 01/02/2021 ITA/29/2017 2017 W.E.C Lines K Ltd Elizabeth Tanui 3 years+

6) 26/02/2021 ITA 8/2017 2017 Seven Seas Technologies Ltd M Muigai 3 years+

7) 09/03/2021 ITA/26/2017 2017 Awal Ltd M Muigai 3 years+

8) 20/04/2021 ITA35/2017 2017 Kobo Safaris J. Mativo 3 years +

9) 28/04/2021 ITA/15/2017 2017 Mastermind Tobacco K Ltd D S Majanja 3 years +

10) 13/01/2021 ITA/10/2018 2018 East Africa Marine Systems Ltd D S Majanja 2 years+

11) 21/01/2021 ITA/13/2018 2018 Mungania Tea Factory Grace Ngenye 2 years+

12) 21/01/2021 ITA/31/2018 2018 W.E.C Lines K Ltd Francis Tuiyot 2 years+

13) 01/02/2021 ITA/31/2018 2018 W.C.E Lines K Ltd Elizabeth Tanui 2 years+

14) 09/03/2021 ITA/11/2018 2018 Diamond Industries Ltd G W Ngenye 2 years+

15) 23/04/2021 ITA/6/2018 2018 Mars Logistics Ltd J. Mativo 2 years +

16) 27/04/2021 ITA/11/2018 2018 Diamond Industries Ltd G W Ngenye 2 years +

17) 04/02/2021 ITA/E003/2019 2019 Pevans EA Ltd & others D S Majanja 1 year +

18) 17/03/2021 ITA/E003/2019 2019 Pevans East Africa Ltd, Shop & Deliver Ltd & 5 Others D S Majanja 1 years+

2) TAX APPEALS TRIBUNAL UPDATE.

Treasury tax deal to unlock Sh133bn from stalled cases

Tuesday, February 23 2021

The Treasury and the Tax Appeals Tribunal have agreed to conclude stalled cases within 50 days, unlocking over Sh133 billion.

1) Monthly breakdown of Appeals determined since President’s Uhuru’s directive to expedite the determination of tax appeals on 5/11/2019.

There are no updates for March 2021 and April 2021.

Month

Nov 2019 =.   1

Dec 2019 =. 22

Jan 2020 =    0

Feb 2020 =  17

Mar 2020 =  26

Apr 2020  =.   0

May 2020 =.  0

Jun 2020 =    0

Jul 2020  =  10

Aug 2020 = 10

Sep 2020 = 33

Oct 2020  = 22

Nov2020  =.  7

Dec2020  = 10

Jan 2021. =   7

Feb 2021. =.  4

Mar 2021 =    0

Apr 2021  =  31

Total.       = 200

2) Break down of appeals heard by each member of the tribunal. I.e be it as a member or chairman. The appeals tribunal panels have varied between 3 to 5 members per an appeal. Note the current TAT with 21 members can form 7 panels to expedite the faster hearing of tax appeals.

TAT Members   No. of Appeals          ..  …………                            determined by member

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1 Gabriel N  Kitenga 66

2 Josephine Maangi 65

3 Catherine N Mutava53

4 Abraham Kiprotich 53

5 Tanvir Ali                 51

6 Geoffrey Karuu 51

7 Delilah K Ngala 50

8 Patrick Lutta         46

9 Hellen Bila         46

10 Eli Njeru                 46

11 Mwai Mbuthia         45

12 Eric N Wafula         45

13 Wilfred Gichuki 38

14 Patricia Anampiu 37

15 Mahat Somane 33

16 Timothy Chesire 33

17 Moses Obonyo 31

18 Rose W Namu 21

19 Habon Farah         17

20 Richard Rotich 10

21 John Wangari           1

In the month of April 2021 some members/ panels heard and determined 16 tax appeals while others heard none.

1) Catherine Mutava, Gabriel Kitenga, Abraham Kiprotich and Eric Wafula each heard and made determinations in 16 appeals.

2) Patrick Lutta, Hellen Bila, Mwai Mbuthia and Eli Njeru each heard and made determinations in 11 appeals.

3) Habon Farah heard and made determinations in 10 appeals.

4) Josephine Maangi, Tanvir Ali, Geoffrey Karuu and Delilah Ngala heard and made determinations in 4 appeals.

5) Patricia Anampiu heard and made determinations in 3 appeals.

6) Mohat Somane, Richard Rotich, Timothy Chesire, Wilfred Gichuki, Rose Namu and John Wangari did not hear any appeals.

In order to meet the target agreed on between the TAT and Treasury, it might be advisable for the Tribunal to set targets on the minimum number of appeals each member is expected to hear and determine on a monthly basis.

In conclusion, better case and resource management will go a long way in effectively and efficiently reducing the tax case backlogs at both the High Court and the tribunal.

E.g the Tax Appeals Tribunal can ensure that each member hence panel.hears a minimum number of appeals every month while the High Court can improve case management by managing (restricting) the number of allowable mentions per case. Cases must progress significantly towards judgement with each session.

This is actually what is practised in political/ election cases.

Regards,

Concerned Informer.

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