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. Overview of tax litigation
•   pre-court/pre-tribunal process,
-   •   trial process,
-   •   documentary evidence,
-   •   witness evidence,
-   •   expert evidence,
-   •   decision, judgment and
-   •   recent developments and proposals for reform.
Issues subject to tax litigation
What are the most common issues subject to tax litigation in
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).
2. Legislative framework
Outline the legislative framework and principal pieces of legislation governing both civil and criminal tax litigation.
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 technical decisions of the TAT
Appeals from the TAT will usually principally be on technical issues, and are usually a civil law matter.
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).
Abuse of process or other administrative excesses by the KRA
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:
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
Article 47 is the most commonly relied upon provision of the
Constitution of Kenya in the cases where taxpayers have filed
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?
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).
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).
A person is guilty of the offence of tax evasion if he, without reasonable excuse:
4.   Pre-court / pre-tribunal process
- 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.
4.1   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:
- Accept the position (after which he is required to remit the taxes stated as owing).
- Object to the notice of assessment by providing an "objection notice" to the Commissioner in writing.
The objection notice must both:
- State the grounds of the taxpayer's objection.
- Be received by the Commissioner within 30 days from the date on which the notice of assessment was served.
Once an objection notice has been duly filed, the Commissioner can either:
- Amend the notice of assessment in accordance with, or in the light of, the objection notice.
- 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
within 14 days
- 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
- a memorandum of appeal,
- statement of facts and
- the Commissioner's decision
of filing the notice of appeal.
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
can be invoked at various stages of the tax dispute resolution
In Kenya, ADR is a voluntary
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.
What are the elements of the main criminal law offences in
of the main criminal law offence of tax evasion are as follows:
- Non-disclosure of income or other information relevant to the tax status of a person.
- Fraudulent misrepresentation in tax reporting documentation.
- Non-payment of taxes.
The available defences
in respect of the offence of tax evasion are as follows:
What are the main procedures used for the early resolution of criminal law offences before trial?
- 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.
are provided for under the Criminal Procedure
Code. A prosecutor and an accused person (or his representative)
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
provided by the Kenya Revenue Authority
(KRA) (see Question 4
in the TAT are conducted in private
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
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
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
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 in whichever other way the Tribunal may direct.
The Tribunal is also empowered to call witnesses
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
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
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
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
. The Court will then determine the matter.
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.
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.
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
right or fundamental freedom provided for in the Constitution of Kenya
An application claiming constitutional protection must be made by way of
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
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
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.
What is the procedure for commencing tax litigation proceedings in
The Director of Public Prosecutions
(DPP) is mandated to institute and
undertake prosecution in all criminal matters. Further, section 40
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
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
6.   Government response
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.
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
7.   Burden of proof
What is the burden of proof in both civil and criminal tax litigation proceedings?
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
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
the exact infringement
or administrative excess
claiming the Kenya Revenue Authority has committed, and also show
the exact harm
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
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?
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.
The main stages of typical court proceedings are as follows:
9.   Documentary evidence
- 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.
9.1   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
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.
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.
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?
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.
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?
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.
The rules on the production of hearsay evidence are the same as for civil trials (see above, Civil trials
11.   Expert evidence
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
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.
What are the rules concerning the introduction of expert
evidence in criminal trials? Is it possible to introduce expert
Are there any special considerations for introducing expert evidence/reports in both civil and criminal trials?
Expert witnesses can be called by the prosecution or the accused person during trial.
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.
What are the rules governing the submission of both written and oral argument in closing a civil trial?
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.
This is the same as for civil trials (see above, Civil trials).
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.
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
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.
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:
How is the issue of costs determined in both civil and criminal
- 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.
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.
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.
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.
What is the procedure for appealing a civil law decision?
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:
- The memorandum of appeal.
- The pleadings.
- The notes of the trial magistrate made at the hearing.
- Transcripts of any notes.
- All affidavits, maps and other documents put in evidence before the magistrate.
- The judgment, order or decree appealed from.
- 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.