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Connect With Us: Visit Our Website Monday 8th AprilIssue 14/2013

CASE OF THE WEEK

Requirements of a Tax Demand Notice

Geothermal Development Company Limited V Attorney General& 4 OthersHigh Court at Nairobi Constitutional and Human Rights DivisionPetition No.352 of 2012D.S. Majanja. JMarch 18, 2013Reported by Andrew Halonyere & Cynthia Liavule

The petitioner brought a petition before the High Court challenging the process in which Kenya RevenueAuthority demanded tax and its subsequent enforcement. The petitioner submitted that the tax demandnotice did not satisfy the requirements of a proper notice consistent with article 47 (1) of the Constitutionthereby infringing its right of fair administrative action.

Issues

1. Whether failure by the Kenya Revenue Authority to disclose the nature, implication and consequences ofnon-compliance of the tax demand notice as well as notifying the taxpayer of the avenues of appeal orreview available to it was in violation of fair administrative action afforded by Article 47(1) of theConstitution.

Constitutional law- fundamental rights and freedoms - right to fair administrative action - tax demandnotice what constitutes a proper notice - whether failure to issue proper demand notice amounted toviolation of right to fair administrative action-Constitution of Kenya, 2010 Article 47(1) Value Added TaxAct (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 isexpeditious, efficient, lawful, reasonable and procedurally fair.

The Value Added Tax Act (Cap 476) Paragraph 9, Seventh schedule to the Act- Provision for theCommissioner 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 ofAssessment notices by the Commissioner of Tax. It did not provide for a specific or mandatory form ofnotice. However, that did not exonerate Kenya Revenue Authority from meeting the constitutionalstandards 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 enshrinedunder the Constitution of Kenya, 2010.

3. A party dealing with KRA had a legitimate expectation to be served with the Notice of Assessment in theform 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 thebasis of allegations against it. Elementary justice and the law demanded that a person be given fullinformation on the case against him and given reasonable opportunity to present a response. That right wasnot limited only in cases of hearing as in the case of a court or before a tribunal, but when takingadministrative action as well.



5. The tax demand letter sent to the petitioner fell short of the requirements of a proper notice in as far asit failed to disclose its nature, implication and consequences of non-compliance as well as notifying thetaxpayer 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 theamount claimed, stated the legal provision under which it was made and drew the taxpayers attention tothe consequences of failure to comply with the law and the opportunity provided by the law to contest thefinding. Such a notice would give the opportunity to any Kenyan to know the case against it and utilise thelegal provisions to contest the decision. The right to fair administrative action and the right of access ofjustice enshrined in the Constitution demanded nothing less.

7. The petitioner's rights to fair administrative action afforded by article 47(1) of the Constitution wereviolated 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 untilissuance 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 ServiceLicences.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 53Legislative SupplementLEGAL 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. 4198CUSTOMS SERVICES DEPARTMENT

CORRIGENDA

CORRECTIONS are made on Gazette Notices No. 1549 of 2013, 1550 of 2013 and 1941 of 2013 bychanging 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 12thApril, 2013 and 15th April,2013.

All the other details in the gazette notices remain the same.

Dated the 2nd April, 2013.

JOHN CHANGOLE,



Deputy Commissioner, Port Operations.


CORRIGENDA

CORRECTION is made on Gazette Notice No. 2317 of 2013 by changing the date of the auction from 9thApril, 2013 to 16th April, 2013.

The dates of viewing the items have also been changed from 5th April, 2013 and 8th April, 2013 to 12thApril, 2013 and 15th April, 2013.

All the other details in the gazette notice remain the same.


JOHN CHANGOLE,Deputy Commissioner, Port Operations.


CORRIGENDA

CORRECTION is made on Gazette Notice No. 1940 of 2013 by changing the date of the auction from 9thApril, 2013 to 16th April, 2013.

The dates of viewing the items have also been changed from 5th April, 2013 and 8th April, 2013 to 12thApril, 2013 and 15th April, 2013.

All the other details in the gazette notices remain the same.


BENSON CHACHA,Deputy Commissioner, Mombasa Headquarters.

GAZETTE NOTICE NO. 4172THE ENVIRONMENTAL MANAGEMENT AND

CO-ORDINATION ACT(No. 8 of 1999)

THE NATIONAL ENVIRONMENT MANAGEMENTAUTHORITY

ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORTFOR 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

COUNTYINVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the NationalEnvironmental Management Authority (NEMA) has received an Environmental Impact Assessment StudyReport for the above proposed project.

The Proponent (Azalea Holdings Ltd) intends to construct on a 20 acre plot, a Commercial Complexcomprising: specialist shops; first green supermarket in Kenya, 2000 m 2 central open space (communityand 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.



The National Environment Management Authority invites members of the public to submit oral or writtencomments 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




ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORTFOR THE CANCER AND CHRONIC DISEASE CENTRE FORMOI TEACHING AND REFERRAL HOSPITAL IN ELDORET

INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the NationalEnvironmental Management Authority (NEMA) has received an Environmental Impact Assessment StudyReport for the above proposed project.

The Proponent (Moi Teaching and Referral Hospital) intends to construct a modern Cancer Disease Centre inEldoret.


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.



National Environment Management Authority.MR/1771724




ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORTFOR THE PROPOSED HASHI ENERGY LIMITED LIQUEFIED

PETROLEUM GAS (LPG) FILLING PLANT ON LANDREFERENCE: UN-SURVEYED KENYA RAILWAY

CORPORATION LAND IN NANYUKI, KENYA RAILWAYSTATION, INDUSTRIAL AREA.

INVITATION OF PUBLIC COMMENTS

PURSUANT to Regulation 21 of the Environmental Management and Coordination (Impact Assessment andAudit) Regulations, 2003, the National Environment Management Authority (NEMA) has received anEnvironmental 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 LaikipiaCounty. The project involves the installation of an offloading point for LPG Road Tankers, a Manual CylinderBottling Plant, LPG Cylinder loading and offloading area, cylinders storage space, firefighting system and



related offices.


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.



MR/1771901 National Environment Management Authority.

Gazette Notice No. 4423THE KENYA NATIONAL MANAGEMENT AND

COORDINATION ACT(No. 8 of 1999)


APPLICATION FOR ACCESS PERMIT

PURSUANT to Legal Notice No. 160 on Environmental Management and Coordination (Conservation ofBiological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006; theNational 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 ofBiological Sciences.

(b) Activities: Collection of urine samples from red Colubus Monkey (Procolobus rufomitratus) at Tana RiverPrimate 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 bedone 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 inGermany.

Note:The full documentation of the proposed activities are available for inspection during working hours atNational 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 withintwenty-one (21) days from the date of publication of the notice to the Director General to assist theAuthority 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. 4448THE 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



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 publicholiday.

Dated the 4th April, 2013.

F. T. KIMEMIA,Permanent Secretary,

Secretary to the Cabinet and Head of the Public Service.

National Council for Law ReportingMilimani Commercial Courts

Building, Ground Floor

P.O Box 10443 - 00100, NairobiKenya.

Tel: (254 020) 2712767, 2719231 Fax: (254 020) 2712694

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