George Odunga
High Court
Kenya Revenue Authority
KRA
Odunga
Robert Ayisi
Standard SMS
Value Added Tax

KRA tax recovery suffers setback

It will now be difficult for Kenya Revenue Authority (KRA) to recover taxes from evaders after a court declared sections of its laws unconstitutional.

High Court judge George Odunga yesterday declared three sections of Tax Procedure Act, 2015 unconstitutional, rendering tax recovery almost impossible.

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From the judgement, KRA will not confiscate goods or even attach properties with an intention of recovering taxes. In addition, the taxman is no longer welcome to your office or home to confiscate documents relating to payment of taxes or even carrying out arrests. Justice Odunga also declared illegal the law shifting the burden of proof to the taxpayer when default claim is raised. This means KRA will now be required to provide proof that you have not paid taxes.

In a case by former Nairobi County health executive Dr Robert Ayisi, the court noted that sections 44 (1 and 2), 60 (1 and 3) and section 59 (4) are against peoples’ right to privacy, to own property and to be treated with dignity.

Section 44 empowers a KRA officer to take away goods he suspects the owner did not pay Value Added Tax or excise duty for. Section 60 gives KRA full and free access to any building or property and authority to cart away documents or data storage devices believed to be used in tax fraud. On the other hand, Section 59 lifted the caveat on production of privileged information.

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“In this case, it may well be that Kenyans wanted to break away from the past where the Executive and its apparatus could arbitrarily break into people’s premises at any time of the day or night and cart away property in violation of their rights,” said Justice Odunga.

He added: “As this court had held time and again, a taxing master is not entitled to plucking a figure from the air and imposing it on a taxpayer without some rational basis of arriving at that figure.”

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