Tax Litigation

Tax litigation in Kenya

A Q&A guide to tax litigation in Kenya

This notes provides an overview of the key practical issues in civil and criminal tax litigation, including:

  1.   •   pre-court/pre-tribunal process,
  2.   •   trial process,
  3.   •   documentary evidence,
  4.   •   witness evidence,
  5.   •   expert evidence,
  6.   •   decision, judgment and
  7.   •   recent developments and proposals for reform.

1. Overview of tax litigation

Issues subject to tax litigation

What are the most common issues subject to tax litigation in your jurisdiction?

The Tax Appeals Tribunal (TAT) was specifically established to hear tax disputes, and effectively serves as the forum of first instance before tax litigation can commence on a tax dispute.

Where a case is referred directly to the courts, circumventing the pre-litigation procedure set out by the TAT, the courts will often refer that matter back to the TAT if it comes to the judge's attention that the prelitigation procedure has been circumvented.

There are three main issues that commonly form the subject of tax litigation in Kenya:

  • Appeals from technical decisions of the TAT.

  • Abuse of process or other administrative excesses by the Kenya Revenue Authority (KRA).

  • Infringement of constitutional rights (where taxpayers have filed constitutional petitions).

  1. Appeals from technical decisions of the TAT

  2. The TAT is a body that was set up under the Tax Appeals Tribunal Act 2013 to hear and determine disputes relating to taxation in Kenya. Where a party is affected by an unfavourable decision of the TAT, that party has a right of appeal to the High Court of Kenya.

    Appeals from the TAT will usually principally be on technical issues, and are usually a civil law matter.

  3. Abuse of process or other administrative excesses by the KRA

  4. In a number of instances, litigation is commenced because the Kenya Revenue Authority (KRA) has exceeded or abused its powers. The harm or prejudice suffered as a result of such abuse usually forces the taxpayer to side-step the pre-litigation dispute resolution process and proceed directly to litigation by filing a judicial review application (which is a civil law application).

  5. Infringement of constitutional rights

    Article 22 of the Constitution of Kenya provides that a person can institute court proceedings where a right or fundamental freedom in the Bill of Rights has been:

    • Denied.
    • Violated.
    • Infringed.
    • Threatened.
    Under Article 47 of the Constitution of Kenya, every person has the right to be subject to administrative action from public bodies which is expeditious, efficient, lawful, reasonable and procedurally fair.

    Article 47 is the most commonly relied upon provision of the Constitution of Kenya in the cases where taxpayers have filed constitutional petitions.
2. Legislative framework

Outline the legislative framework and principal pieces of legislation governing both civil and criminal tax litigation.

  1. Civil tax litigation

    The principal pieces of legislation governing civil tax litigation are as follows:

    • Civil Procedure Act.
    • Tax Procedures Act.
    • Tax Appeals Tribunal Act.
    • Tax Appeals Tribunal, Appeals to the High Court Rules 2015.
    • Tax Appeals Tribunal Procedure Rules 2015.
    • Court of Appeal Rules (CA Rules).

  2. Criminal tax litigation

    The principal pieces of legislation governing criminal tax litigation are as follows:

    • Criminal Procedure Code.
    • Tax Procedures Act.
    • Tax Appeals Tribunal Act.
    • Tax Appeals Tribunal, Appeals to the High Court Rules 2015.
    • Tax Appeals Tribunal Procedure Rules 2015.
    • Court of Appeal Rules (CA Rules).
3. Tax evasion and other criminal tax offences

What are the key elements that constitute tax evasion and other main criminal tax offences in your jurisdiction?

A person is guilty of the offence of tax evasion if he, without reasonable excuse:

  • Fails to provide a full and true return.

  • Fails to keep records and proper books of account.

  • Fails to produce any document for the inspection of the Commissioner of the Kenya Revenue Authority (Commissioner).

  • Fails to account for tax in accordance with the provisions of the law.

  • Makes an incorrect return by omitting or understating income.

  • Makes an incorrect statement in a return.

  • Provides incorrect information in relation to any matter affecting the liability to tax of another person.

  • Prepares or maintains, or authorises the preparation or maintenance of, false books of account.

  • Makes use of fraud, or authorises the use of fraud.

4.   Pre-court / pre-tribunal process

4.1   Assessment, re-assessments and administrative determinations in civil law

Outline the procedure for tax assessments, re-assessments and administrative determinations in civil law.

The Kenya Revenue Authority (KRA) is the public body charged with the responsibility for collecting taxes on behalf of the Government of Kenya.

Kenya operates a self-assessment regime. However, the Commissioner of the KRA (Commissioner) also has the power to assess taxpayers in order to determine whether tax has been properly accounted for.

Where non-compliance is identified, the Commissioner issues a "notice of assessment" to the taxpayer setting out the tax payable.

The taxpayer can then either:

  1. Accept the position (after which he is required to remit the taxes stated as owing).

  2. Object to the notice of assessment by providing an "objection notice" to the Commissioner in writing.

    The objection notice must both:

    1. State the grounds of the taxpayer's objection.
    2. Be received by the Commissioner within 30 days from the date on which the notice of assessment was served.
    3. Once an objection notice has been duly filed, the Commissioner can either:

    4. Amend the notice of assessment in accordance with, or in the light of, the objection notice.

    5. Refuse to amend the notice of assessment altogether.
Where a taxpayer is not satisfied with either the degree of any amendment to the notice of assessment, or the failure of the Commissioner to amend the notice of assessment, he can appeal against the decision to the Tax Appeals Tribunal.

  • In this case, the taxpayer must file a notice of appeal within 30 days of the date of the Commissioner's decision.

  • He must then submit appeal papers including

    1. a memorandum of appeal,
    2. statement of facts and
    3. the Commissioner's decision
within 14 days of filing the notice of appeal.

4.2   Resolving disputes before commencing court proceedings

What are the main procedures used to resolve disputes before commencing proceedings in a civil court / tribunal?

In recent times, the Kenya Revenue Authority has established an alternative to the formal dispute resolution process described above in the form of Alternative Dispute Resolution (ADR), which can be invoked at various stages of the tax dispute resolution process.

In Kenya, ADR is a voluntary, participatory and facilitated discussion over a tax dispute between a taxpayer and the Commissioner that can be initiated by either of the parties by filing a notification to engage in ADR.

Where the notification to engage in ADR is made to either the Tax Appeals Tribunal (TAT) or to the court, the party making the request must submit

  • a written request accompanied by

  • a settlement proposal.

The settlement proposal must be submitted whether it is the taxpayer or the Commissioner (or his agent) making the request to engage in ADR. The TAT or the court can then stay the hearing of the dispute (and any existing orders) for the period that the dispute is subject to ADR discussions.

The parties must be guided by the rules of engagement that they agree between themselves, together with any applicable statutory rules. All relevant documentation must be provided during the ADR discussions to support the matters subject to dispute and guide the ADR process.

The taxpayer can opt to act on his own behalf during the ADR discussions, or can be accompanied by a representative of his own choosing or a tax adviser.

4.3   Elements of the offence in criminal law

What are the elements of the main criminal law offences in tax litigation?

The elements of the main criminal law offence of tax evasion are as follows:

  1. Non-disclosure of income or other information relevant to the tax status of a person.

  2. Fraudulent misrepresentation in tax reporting documentation.

  3. Non-payment of taxes.

The available defences in respect of the offence of tax evasion are as follows:

  • a genuine lack of awareness that the offence was being committed. This is typically used by the senior management of an organisation that is charged with tax evasion, and the person accused will have to:

  • prove that there was no way that they could have known that the offence was being committed;

  • illustrate what steps they took to remedy the situation upon discovery.

  • a lack of clarity in the law which led to a misinterpretation or misapplication of that law by the taxpayer.

  • the Kenya Revenue Authority (KRA) made a representation to the taxpayer that created a legitimate expectation that the taxpayer would be treated in a certain way, and that the taxpayer's actions were in accordance with the law.

4.4   Early dispute resolution

What are the main procedures used for the early resolution of criminal law offences before trial?

Plea agreements are provided for under the Criminal Procedure Code. A prosecutor and an accused person (or his representative) can negotiate and enter into an agreement in respect of a:

  • reduction of a charge to a lesser included offence.

  • withdrawal of the charge, or

  • stay of other charges, or

  • promise not to proceed with other possible charges.

Furthermore, a plea agreement can also provide for the accused person to make a payment of any restitution or compensation.

5.   Trial process

5.1   Format of the hearing/trial

What format does the hearing / trial take?

The forum of first instance is the Tax Appeals Tribunal (TAT), and appeals from the TAT can be made to the High Court. Cases can be submitted to the TAT where a taxpayer has exhausted the administrative procedures provided by the Kenya Revenue Authority (KRA) (see Question 4).

Hearings in the TAT are conducted in private, and only the parties to the case are allowed to attend. However, hearings at the High Court are conducted in public. Notwithstanding, depending on the sensitivity of the matter, a party can make an oral application to have the matter heard in private.

5.2   Process at the Tax Appeals Tribunal

A notice of appeal to the TAT must be in writing and must be submitted to the TAT within 30 days of receipt of the Commissioner's decision.

Once the taxpayer has filed a notice of appeal to the TAT, he must, within 14 days from the date of filing the notice of appeal, submit enough copies as may be advised by the Clerk of the Tribunal (usually nine) of the following documents:

  • A memorandum of appeal (stating the grounds upon which the appeal is based).

  • Statement of facts (setting out the circumstances leading to the KRA's decision on the objection notice submitted by the taxpayer).

  • The KRA's decision on the objection notice submitted by the taxpayer.

Within seven (7) working days of receiving the notice of appeal from the taxpayer, the officer in charge of the registry will notify the Secretary to the Tribunal of the particulars of that appeal.

The taxpayer must serve a copy of the notice of appeal to the Commissioner of the KRA within two (2) days of filing the notice of appeal to the TAT. The Commissioner then has 30 days from receipt of the notice of appeal to file the following with the TAT:

  • Copies of his statement of facts.

  • A statement providing the reasons for the KRA's decision on the objection notice submitted by the taxpayer.

  • All supporting documentation.

The TAT then sets out the hearing date for the appeal.

The Clerk of the Tribunal will provide at least 14 days' notice to all parties to the appeal of the date that has been fixed for the first hearing of the appeal. Dates for subsequent hearings can also be fixed by the Tribunal.

During the hearing, evidence can be given orally or through affidavits or in whichever other way the Tribunal may direct. The Tribunal is also empowered to call witnesses to attend a hearing or produce any document if it is thought that such evidence is relevant to the proceedings.

The Tribunal is additionally permitted to engage the services of an independent expert in any proceedings. Such evidence can be taken into account in the making of its decision.

The parties can also choose to settle the matter out of court and seek leave to do so through an application to the Tribunal. Upon the conclusion of a matter, the Tribunal is permitted to award costs.

5.3   Process at the High Court

Within 30 days after the date the appellant has filed a "notice to appeal" with the High Court, the appellant must file a memorandum of appeal with the Registrar of the High Court (Registrar), and serve a copy on the respondent.

After the memorandum and supporting documents have been filed, the Registrar will stamp those documents and number and enter the appeal as a tax appeal in the register of tax appeals. However, an appeal will abate in any case where any filing fees due have not been paid in full within 14 days from the date the appellant is notified of the total amount of the fees that are payable by him.

The respondent must file a statement of facts (response) with the Registrar within 30 days after the memorandum of appeal has been served on him by the appellant.

Thereafter, unless the parties agree otherwise, the Registrar will give 15 days' notice, in writing, to the parties of the date and place fixed for the hearing of the appeal. At the hearing of the appeal, the Court will hear the appellant and his witnesses first and the respondent will be given an opportunity to cross-examine the witnesses (if any).

At the close of the appellant's case, the respondent's evidence will be heard, and the appellant will be given the opportunity to crossexamine each witness followed by re-examination by the respondent, after which the parties can make oral or written submissions. The Court will then determine the matter.

5.4   Role of the judge/arbitrator/tribunal members

What is the role of the judge/arbitrator/tribunal members in both civil and criminal tax litigation? Civil tax litigation

The role of the tribunal/judge is to:

  • Hear and determine an appeal.

  • Advise all parties in writing of the time and place of the hearing.

  • Give directions as to the conduct of the case.

  • Call any person to attend at a hearing and give evidence, including production of any document if the Tribunal believes such evidence will assist in its deliberations.

  • Make an order staying or otherwise affecting the operation or implementation of the decision under review, as considered appropriate for the purposes of securing the effectiveness of the proceeding and determining the appeal.

  • Take evidence on oath, proceed in the absence of a party who has reasonable notice of the proceedings, and adjourn the hearing of the proceedings.

Criminal tax litigation

Where the matter is treated as a criminal offence, the court's role is largely the same as in all other cases, except that it will additionally:

  • Take the plea of the accused person.

  • Hear the prosecution so as to determine whether the accused has a case to answer:

  • if there is no case to answer, the court will dismiss the case;

  • if there is a case to answer, the court will direct the accused person to enter his defence.

  • Hear the defence.

  • Determine the matter by rendering judgment/sentencing.

5.5   Commencement of proceedings:

civil law

What is the procedure for commencing tax litigation proceedings in civil law and/or a taxpayer appealing a decision of the tax authority?

See paragraph 5 for the general procedure to commence tax litigation proceedings in civil law with either the Tax Appeals Tribunal or the High Court, where a taxpayer has exhausted the administrative procedure provided by the Kenya Revenue Authority.

There is also a special procedure to commence tax litigation proceedings in the High Court under constitutional law where any right or fundamental freedom provided for in the Constitution of Kenya is denied, violated or infringed.

An application claiming constitutional protection must be made by way of a petition to the High Court, disclosing the constitutional provision violated and the nature of injury caused, or likely to be caused, to the petitioner.

The Court can also accept an oral application, a letter or any other informal documentation which discloses a denial or violation of, or an infringement or threat to, a right or fundamental freedom. However, an oral application must then be made into a written submission by the Court. The petition is usually supported by an affidavit, sworn by the person making the petition.

If a party wishes to rely on any document, the document must be annexed to the supporting affidavit (or the petition, where there is no supporting affidavit).

The petitioner must serve the respondent with the petition, documents and relevant annexures within 15 days of filing those documents with the Court, or within such time as the Court may direct. An affidavit of service will serve as proof of service.

The Attorney General (or any other state organ) will respond by way of a replying affidavit within 14 days of service of a petition. If any document is relied upon, it will be annexed to the replying affidavit. Any other category of respondent must, within seven days, file a memorandum of appearance and either a:

  • Replying affidavit.

  • Statement setting out the grounds relied upon to oppose the petition.

The Court will then give directions as to the proceedings.

Must a taxpayer pay the disputed tax before leave to appeal the tax authority's decision is granted?

There is no requirement for the taxpayer to pay the disputed tax before appealing against a decision of the tax authority. However, there is a requirement to pay KES20,000 (approximately US$200) before lodging an appeal.

Interest and penalties stop running/accruing on the submission of the objection notice by the taxpayer. If the taxpayer subsequently loses the appeal, the quantum of the interest and penalties payable will be the same as that which was imposed at the time the objection notice was submitted. However, the taxpayer does not have to pay these immediately, as he has a right to apply to the Commissioner for a waiver of penalties and interest. He can therefore pay only the principal amount determined to be payable, and then submit an application for a waiver of the penalties and interest.

Criminal law

What is the procedure for commencing tax litigation proceedings in criminal law?

The Director of Public Prosecutions (DPP) is mandated to institute and undertake prosecution in all criminal matters. Further, section 40 of the Tax Appeals Tribunal Act provides that an authorised officer can appear and prosecute any offence under the Tax Appeals Tribunal Act before a subordinate court with the approval of the DPP.

The process is initiated by a complaint lodged with the Kenya Police. A complainant can be a member of the public or a public body or institution, such as the Kenya Revenue Authority or any of its officers. The person alleging the commission of an offence is required to write a statement together with all other persons required to testify. The police will conduct investigations on the lodged complaint. If they are of the view that the accused person ought to be charged, they will forward the police file to the DPP with a recommendation that criminal proceedings be instituted.

6.   Government response

Civil law

How has the government responded to recent civil and criminal law cases to improve the court procedure?

Given the increase in the number of cases that end up in court, the government has:

  • Introduced an ADR mechanism to help both the Kenya Revenue Authority and taxpayers reach amicable settlements in a less expensive way.

  • Introduced a harmonised Tax Procedures Act that brings together the dispute resolution mechanisms under one regime to simplify administration and procedures with regard to dispute resolution.

  • Set up a Tax Appeals Tribunal, which consolidates the previous separate tribunals under the respective statutes. This tribunal is comprised of a 20-member team, with three forming a quorum to hear matters. The members are professionals, drawn from accounting, legal, financial and economic fields, setting the stage for the speedier, thorough and effective resolution of disputes.

  • Engaged in a number of taxpayer education/recruitment exercises, to inform taxpayers of their obligations with regard to tax compliance.

These measures have been introduced to help reduce the number of cases that proceed to court, as well as ensure that the cases that do proceed to court are cases that are required to be heard by the court.

Criminal law

The Kenya Revenue Authority rarely initiates criminal proceedings against defaulting taxpayers. The practice is usually to have the taxpayer pay interest and penalties based on the unpaid tax. The criminal procedure has not recently changed with respect criminal cases.

7.   Burden of proof

What is the burden of proof in both civil and criminal tax litigation proceedings?

Civil law

The burden of proof in respect of civil tax cases rests with the taxpayer, and it is for him to prove the payment of taxes or the infringement of rights or freedoms. The taxpayer must provide actual evidence of payment of the tax demanded (if the issue is a tax assessment) by providing actual payment receipts or other forms of evidence. If the case involves a petition or judicial review application, he must demonstrate the exact infringement or administrative excess he is claiming the Kenya Revenue Authority has committed, and also show the exact harm or injustice that he will suffer if the relief sought is not granted.

In constitutional petitions and judicial review applications, the burden of proof is on a balance of probabilities.

Criminal law

The burden of proof is beyond reasonable doubt, in the sense that the prosecution must establish that there is a case to answer on the part of the accused. It will therefore have to show that the elements of a criminal tax offence are present (for example, fraud or intention to evade tax through deliberate non-disclosure). This is no different from any other criminal case.

8.   Main stages

What are the main stages of typical court proceedings for tax disputes?

Civil law

The main stages of typical court proceedings are as follows:

  • Lodging and service of the appeal papers.

  • Obtaining directions from the judge on how the case will proceed.

  • Presentation of submissions, whether written or oral, depending on the judge's directions.

Criminal law

The main stages of typical court proceedings are as follows:

  • Drafting of the charge sheet by the prosecution, stating the exact nature of the offence for which the accused is charged.

  • Plea taking.

  • Prosecution presents its case.

  • Court makes a determination on whether the accused has a case to answer.

  • If it is determined that there is no case to answer, the court will dismiss the case. If, however, there is a case to answer, the accused person will enter his defence.

  • Sentencing / judgment of the court on hearing both parties.

9.   Documentary evidence

9.1   Disclosure of documents in civil proceedings

What documents must the parties disclose to the other parties and/or the court in civil proceedings? Are there any detailed rules governing this procedure?

For taxation matters, the documentation that must be disclosed will include all the information normally required by the taxpayer for the purposes of tax reporting. This includes:

  • Financial statements for the period in question.

  • Tax computations.

  • Proof of payment of taxes in the form of receipts.

  • returns filed during the period.

  • Any other documentation that the court deems necessary.

It must be noted that for tax purposes, the Commissioner has the statutory authority to inspect any books or records of a taxpayer, with no limitations.

9.2   Special rules/considerations

Are there any special rules or considerations concerning the disclosure or discovery of documents in civil tax litigation?

For the purposes of inquiring into the affairs of a person, the Commissioner or an authorised officer can, with a warrant, exercise all or any of the following powers, where a person has, or is reasonably suspected of committing, an offence:

  • Enter any premises to search for money, documents or other articles relevant to the inquiry.

  • Open, or remove from the premises and open, any container, box or package in which it is suspected that money, documents or relevant articles are contained.

  • Seize money, documents or relevant articles which may be necessary for the inquiry or for the purpose of civil or criminal proceedings and to retain them for as long as they are so required.

    In the case of documents held by a banker, the Commissioner is limited to making copies or extracts of those documents. Signed receipts of the documents and the relevant articles seized must be provided to the suspected person.

    For tax purposes, the Commissioner is entitled to inquire into the affairs of a person for any of the purposes of the taxing Acts, and will at all times have full and free access to all lands, buildings and places, and all books and documents, whether in the custody or control of a public officer, or of a body corporate or of any other person whatsoever, for the purpose of inspecting books and documents or for any other purpose he may consider relevant to the inquiry, and may make extracts from or copies of those books or documents.

9.3   Disclosure in criminal proceedings

What documents must the parties disclose to the other parties and/or the court in criminal proceedings? Are there any detailed rules governing this procedure?

The rules are the same as those set out for civil proceedings (see Question 9.1).

9.4   Special rules/considerations

Are there any special rules or considerations concerning the disclosure of documents in criminal tax litigation?

There are no special rules or considerations concerning the disclosure of documents in criminal tax litigation. Notwithstanding, in instances involving a taxpayer who is liable for gross or wilful neglect, evasion or fraud, the Commissioner can make assessments with respect to tax liability for financial obligations without a bar on time. In all other instances, the decisions of the Commissioner are timebarred and ought to relate to fiscal issues arising in the last five years. This means that in criminal tax litigation, the taxpayer is likely to be required to produce documents with respect to a longer period of time, subject to their availability.

10.   Witness evidence

10.1   Trial considerations

Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Civil law

This depends on the nature of the case. In constitutional review and judicial review applications, evidence is usually tendered by way of an affidavit. A party reserves the right to apply to cross-examine the deponent of an affidavit. In this case the deponent will have to attend court and give oral evidence.

In civil cases instituted by way of plaint, the witnesses will sign witness statements which are filed in court and will later be required to give oral evidence at the time of the hearing.

Criminal law

Witness statements are usually not filed in criminal matters. The complainant, other relevant persons and the accused ordinarily record statements with the police to aid in investigations, but these are not witness statements.

10.2   Witness preparation

Provide a brief outline of the procedure for preparing witnesses in both civil and criminal cases. Are there any special or unique features to consider for witness evidence in criminal cases?

Civil law

There is no exact procedure, but generally the following rules apply:

  • Witness coaching is not permitted.

  • The witness is informed of what to expect in terms of the court procedure, and what to expect in cross-examination.

Criminal law

The rules applicable to witness preparation are the same as those under civil law (see above, Civil law).

10.3   Hearsay evidence in civil and criminal trials

Are there any rules concerning the introduction of hearsay evidence in civil and criminal trials?

Civil trials

Oral evidence must be provided as direct evidence. A statement made by a person not called as a witness that is offered in evidence to prove the truth of the fact contained in the statement is hearsay, and is not admissible. However, if the statement is provided as evidence not to prove the truth of the facts contained in the statement, but only to prove that the statement was in fact made, it is not hearsay and it is therefore admissible.

Criminal trials

The rules on the production of hearsay evidence are the same as for civil trials (see above, Civil trials).

11.   Expert evidence

11.1   Expert reports in civil trials

What are the rules concerning the introduction of expert reports in civil trials?

Expert reports can be introduced in civil trials. The rules are similar to the introduction of ordinary witness statements (see).

11.2   Expert evidence in civil trials

What are the rules concerning the introduction of expert evidence in civil trials?

A party is required to file witness statements at the time of filing suit. A party is allowed to file the witness statement of an expert at least 15 days before the pre-trial conference. If evidence is being tendered by way of an affidavit, the expert will swear the affidavit. He can be cross-examined on the contents of the affidavit if necessary.

11.3   Expert evidence in criminal trials

What are the rules concerning the introduction of expert evidence in criminal trials? Is it possible to introduce expert reports?

  • Expert evidence

    Expert witnesses can be called by the prosecution or the accused person during trial.

  • Expert reports

    If the expert witness has prepared a report, the report will have to be produced by the witness during trial. After being produced, the court will mark the expert report as an exhibit in the case.

11.4   Special considerations

Are there any special considerations for introducing expert evidence/reports in both civil and criminal trials?

  • Civil trials

    The expert must have specialist knowledge in the relevant field (not merely just provide a general opinion). The expert must provide a proper opinion that is wholly and substantially based on his expert knowledge. Expert evidence is final and does not require corroboration.

  • Criminal trials

    This is the same as for civil trials (see above, Civil trials).

11.5   Closing the case in civil trials

What are the rules governing the submission of both written and oral argument in closing a civil trial?

In Kenya, it is common for the court to direct the parties to file written submissions. The judge then allocates time to both parties to orally highlight their key arguments, either in open court or in the judge's chambers. This practice was introduced as a result of the congested diaries of the courts, in order to save time and encourage the expeditious conclusion of court cases.

Parties can also elect to rely entirely on their written submissions.

11.6   Closing the case in criminal trials

What are the rules governing the submission of both written and oral argument in closing a criminal trial?

In criminal matters, parties submit at two stages. First is after the prosecution closes its case. The court will hear submissions on whether the accused person has a case to answer. If the accused person has a case to answer, he will be put on his defence and the court will hear submissions on whether the accused is guilty.

12.   Decision, judgment or order

12.1   Civil law cases

What are the rules governing the issuance of a decision in civil cases?

A judgment in a civil case must contain the following matters:

  • A concise statement of the case.

  • A list of the points for determination.

  • The court's decision on each of these points.

  • The reasons for each of these decisions.

The Civil Procedure Rules require that judgement must be pronounced in open court either at once or within 60 days from conclusion of trial. The judgment must be dated and signed by the judge.

12.2   Criminal law cases

What are the rules governing the issuance of a decision in criminal cases?

After the close of proceedings, the court gives a judgment date or judgment on notice. On the scheduled date, judgment is read out by the magistrate/judge to the accused person in public and in a language he understands. The court then pronounces the conviction or acquittal under section 251 of the Criminal Procedure Code, which can include:

  • The title: the Republic versus the accused person(s) names.

  • The charge(s) as written on the charge sheet.

  • Description of procedural events (what the lawyers and the court did prior to the decision being made).

  • Narrative of pleaded or evidentiary events.

  • Statement of issue(s) to be decided by the court.

  • Summary of arguments made by each side.

  • Court's holding on each issue.

  • Rule(s) of law the court enforces through each holding.

  • Court's reasoning (rationale for the court's decision).

  • Obiter dicta: comments and observations of the proceedings.

  • Statement of the decision.

  • Decision of the court, which is based on a finding of each count or charge in the charge sheet.

13.   Costs

How is the issue of costs determined in both civil and criminal cases?

13.1   Civil law

Costs of and incidental to all suits are at the discretion of the judge, and the court has full power to:

  • Determine by whom, and out of what property, and to what extent, such costs are to be paid.

  • Give all necessary directions for these purposes.

However, the costs of any action, cause or other matter or issue will follow the event unless the court or judge orders otherwise.

Further, the court or judge can award interest on costs at any rate not exceeding 14% per annum, and such interest will be added to the costs and be recoverable as such.

13.2   Criminal law

A judge or magistrate can order a person convicted before him of an offence to pay to the public or private prosecutor such reasonable costs as may be deemed fit, in addition to any other penalty imposed.

Where an accused person is acquitted or discharged, the judge or magistrate can order the private prosecutor (if the prosecution for the offence was originally instituted on a summons or warrant issued by a court on the application of a private prosecutor) to pay to the accused such reasonable costs as the judge or magistrate may deem fit. The costs in this instance must not exceed:

  • KES20,000 (approximately US$200) in the High Court.

  • KES10,000 (approximately US$100) in the Magistrates Court.

However, no such order will be made if the judge or magistrate considers that the private prosecutor had reasonable grounds for making his complaint.

Further, where a court convicts a person and imposes a fine (or a sentence which includes a fine), the court when passing judgment can order the whole or any part of that fine to be recovered to be used to defray expenses properly incurred in the prosecution of the offence.

A court which convicts a person of an offence, or on appeal, revises and otherwise confirms the conviction, and finds that the convicted person has a civil liability to the complainant or another person (injured party), can order the convicted person to pay to the injured party such sum as it considers could justly be recovered as damages in civil proceedings brought cvxby the injured party against the convicted person.

14.   Appeals

14.1   Right to appeal in civil law

What are the main grounds for appealing a civil law decision?

In any tax appeal to the Tribunal, High Court or Court of Appeal, the taxpayer may rely only on the grounds stated in the objection to which the decision relates unless the Tribunal or Court allows the person to add new grounds.

Furthermore, appeals to the High Court and Court of Appeal are limited to questions of law.

14.2   Procedure to appeal in civil law

What is the procedure for appealing a civil law decision?

Appeals to the High Court

Appeals are filed to the High Court by way of a memorandum of appeal. Grounds for the appeal are set out in separate paragraphs and numbered consecutively. The grounds set will indicate the reason why the appellant objects to the court's decision.

The appeal must be lodged within 14 days of the decision by filing a memorandum of appeal. On filing the appeal, the appellant must, within 30 days, bring the matter to be listed before a judge for directions.

The judge can give directions concerning the manner in which evidence and exhibits will be put before the appellant court, and as to the typing of any record as well as any other necessary documents. Before allowing the appeal to go for hearing, the judge must be satisfied that the following documents are on the court record:

  1. The memorandum of appeal.
  2. The pleadings.
  3. The notes of the trial magistrate made at the hearing.
  4. Transcripts of any notes.
  5. All affidavits, maps and other documents put in evidence before the magistrate.
  6. The judgment, order or decree appealed from.
  7. Any party to an appeal who does not intend to appear in person or by advocate at the hearing can file a declaration in writing to that effect and lodge written submissions of the arguments in support of, or in opposition to, the appeal. They must, within seven days after lodging the submissions, serve a copy of those submissions on the other party.
Notice of the day fixed for hearing the appeal will be served on the respondent or on his advocate. On the day fixed, the appellant will be heard in support of the appeal. The court will then, if it does not dismiss the appeal at once, hear the respondent against the appeal, after which the appellant will be entitled to reply. The matter will proceed in accordance with the directions issued by the judge. @2014-2023 All rights reserved
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