The Court of Appeal on Wednesday 6th February 2019 stopped a High Court order compelling KRA to issue Prof. Ojienda with a Tax Compliant Certificate (TCC).
In the same ruling, The Court of Appeal further stopped the order, which would obligate Law Society of Kenya (LSK) to process Prof. Ojienda’s nomination to contest Judicial Service Commission elections without a TCC.
Judges of Appeal M.K. Koome, A.K. Murgor and S. ole Kantai delivered the ruling adding that, “We are satisfied that the applicant has satisfied the principles upon which an application of this nature is granted and we therefore grant a stay of execution of the ruling delivered on 4th December, 2018 in Nairobi High Court Constitutional Petition No. 418 of 2018 and any consequential orders pending determination of the applicant’s intended appeal.”
The stayed order was issued by High Court judge Wilfrida Okwany on 4th December 2018. The order followed Prof Tom Ojienda’s High Court petition number 418 0f 2018 on 22nd November 2018, against KRA and the LSK. At the same time of filing the petition, Prof. Ojienda, filed a Notice of Motion application seeking interim orders pending the hearing and determination of the Petition.
KRA appealed the High Court order to issue Prof. Tom Ojienda with a TCC by stating, that complying with the order would make Prof Ojienda tax compliant despite his tax arrears.
The Court of Appeal ruled in favor of KRA, stating that, “compelling KRA to issue a Tax Compliance Certificate to Prof. Ojienda without checking compliance according to the laid down procedure, will contravene provisions of the Tax Procedures Act and the Constitution.”
Further The Court of Appeal was satisfied that if the orders of the High Court are not stayed, KRA will be compelled to issue a TCC without it first being established whether it would be contrary to the laid down procedure required by law.
The Court also observed that, if the order of stay was not issued the LSK would be denied an opportunity to vet the nominee (Prof. Ojienda) for the position of LSK male representative to the JSC using the same criteria as for the othercandidates.
The Court also found that if the orders of stay were not granted, the intended appeal by KRA will be rendered useless at the end of the day.
Commissioner Legal and Board Services Coordination