Legal Analysis–The Case of Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017

1. INTRODUCTION

1.1 This brief examines the judgment of the High Court of Kenya delivered on 20th February 2020 in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017, wherein the Court upheld the constitutionality of sections 57, 58(2), 59 and 99 of the Tax Procedures Act, No. 29 of 2015 (hereinafter “the TPA”).

1.2 The petitioner, Mr. Okiya Omtatah Okoiti, had sought a declaration that the said provisions were inconsistent with the Constitution of Kenya, 2010, for allegedly violating the right to privacy (Article 31) and the privilege against self-incrimination (Article 50(2)(l)).

2. ISSUES FOR DETERMINATION

2.1 Whether sections 57, 58(2), 59 and 99 of the Tax Procedures Act infringe upon:
a. The right to privacy under Article 31 of the Constitution; and
b. The privilege against self-incrimination under Article 50(2)(l) of the Constitution.

2.2 Whether the enforcement powers conferred upon the Kenya Revenue Authority (KRA) by the impugned provisions are reasonable and justifiable in an open and democratic society within the meaning of Article 24 of the Constitution.

3. STATUTORY FRAMEWORK

3.1 The Tax Procedures Act, 2015 was enacted to harmonize and consolidate procedural rules relating to the administration of tax laws in Kenya.

3.2 The impugned provisions grant the Commissioner of Domestic Taxes the following powers:

• Section 57: Power to access premises and inspect goods, records, and equipment for tax purposes.
• Section 58(2): Authority to require any person in custody of relevant documents to produce them for inspection.
• Section 59: Power to obtain, extract, or make copies of such documents or information.
• Section 99: Power to seize documents or items necessary for determining tax liability and to penalize non-compliance by a fine not exceeding KShs. 1,000,000, or imprisonment not exceeding three (3) years, or both.

3.3 Under section 6(1) of the TPA, KRA is obligated to maintain the confidentiality of taxpayer information, save for the exceptions enumerated under section 6(2).

4. PETITIONER’S ARGUMENTS

4.1 The Petitioner contended that the impugned provisions unjustifiably infringed the right to privacy and the privilege against self-incrimination.

4.2 It was further argued that KRA had previously exercised these powers in a politically motivated manner, citing the 2017 incident in which KRA allegedly requested Diamond Trust Bank to release the financial information of H.E. Ali Hassan Joho, Governor of Mombasa County.

5. RESPONDENTS’ ARGUMENTS

5.1 The Attorney General and the Kenya Revenue Authority submitted that the provisions were consistent with the Constitution and served a legitimate public purpose — namely, ensuring compliance with tax obligations.

5.2 They further argued that any limitation of rights occasioned by the provisions met the threshold of Article 24(1) of the Constitution as it was reasonable, necessary, and proportionate to the objective of safeguarding national revenue.

6. THE COURT’S ANALYSIS AND FINDINGS

6.1 The High Court dismissed the petition and upheld the constitutionality of sections 57, 58(2), 59, and 99 of the TPA.

6.2 On the right to privacy, the Court held that:

• The enforcement powers under the TPA are specific to tax administration and do not amount to an unjustifiable intrusion into an individual’s private affairs.
• The confidentiality obligation imposed by section 6 of the TPA adequately protects taxpayer information from misuse.

6.3 On the privilege against self-incrimination, the Court reasoned that:

• The right under Article 50(2)(l) does not exempt individuals from fulfilling lawful obligations, including the duty to provide information necessary for tax assessment.
• The privilege cannot be used as a shield to obstruct lawful investigations or conceal non-compliance with tax laws.

6.4 The Court therefore concluded that the use of compulsory powers to obtain information from taxpayers or third parties does not violate the right against self-incrimination.

7. RELATED JURISPRUDENCE

7.1 The Court distinguished this case from Robert K. Ayisi v Kenya Revenue Authority [2018] eKLR, Petition No. 421 of 2016, in which section 59(4) of the TPA was declared unconstitutional for violating advocate–client privilege as protected under section 137 of the Evidence Act (Cap 80, Laws of Kenya).

7.2 The Omtatah decision clarified that the invalidity of section 59(4) was limited to communications between advocates and clients, and did not affect the validity of the broader investigative and enforcement powers under the remaining provisions of the Act.

8. IMPLICATIONS OF THE DECISION

8.1 The judgment affirms that the Kenya Revenue Authority possesses broad statutory powers to obtain information from taxpayers and third parties for purposes of tax enforcement and compliance verification.

8.2 The ruling strengthens the legal foundation for KRA’s investigative mandate but also raises policy concerns regarding potential abuse of these powers for politically motivated or selective enforcement.

8.3 The Court did not conclusively address mechanisms for preventing such misuse, suggesting a need for continued legislative oversight and administrative safeguards to ensure that enforcement actions remain fair, transparent, and non-discriminatory.

9. CONCLUSION

9.1 The decision in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR stands as a definitive pronouncement that sections 57, 58(2), 59, and 99 of the Tax Procedures Act, 2015 are constitutional.

9.2 The Court’s reasoning underscores the principle that while individual rights under the Constitution are fundamental, they are not absolute and must be balanced against the State’s legitimate interest in ensuring effective revenue collection.

9.3 Consequently, the Kenya Revenue Authority remains lawfully empowered to invoke its statutory powers under the TPA, subject to adherence to the principles of legality, proportionality, and confidentiality enshrined in the Constitution.

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

 

LEGAL Analysis: Limited Grants under the Law of Succession Act (Kenya)

1. Introduction

Under the Law of Succession Act (Cap 160) of the Laws of Kenya, only individuals who have been granted letters of administration or probate may lawfully deal with the estate of a deceased person. Any action taken without this authority, including for the benefit of dependants, constitutes intermeddling, which is prohibited.

However, the law recognizes that urgent circumstances may arise before full administration is granted. In such cases, parties may apply for limited grants to allow specific and urgent acts in respect of the estate.

2. Legal Basis

• Law of Succession Act – Cap 160
• Probate and Administration Rules – Rule 36(1)
• Schedule 5 – Types of limited grants
• Article 53(1)(b), Constitution of Kenya 2010 – Right to education for children

3. Types of Limited Grants

3.1. Grants Limited as to Purpose

a) Grant ad Colligenda Bona

Issued for collection and preservation of the estate. No authority to sell or distribute assets.

Case Law:

• Re Estate of Mary Syokwia Kyalili (eKLR) – Allowed where urgent action is needed and full grant would take time.
• Re Estate of Daniel A. Korir Kipkurui (eKLR) – Granted to access funds for school fees; upheld children’s constitutional right to education.
• Re Estate of Mary Wanja Wairimu (eKLR) – Rent collection preserved through joint account during pending grant process.

b) Grant ad Litem

Granted for the sole purpose of representing the estate in legal proceedings — either as plaintiff or defendant.

Case Law:

• Re Estate of Jennifer Kusuro Musiwa (eKLR) – Limited grant for pursuing a civil suit.
• Re Estate of Helena Wangechi Njoroge (eKLR) – Clarified that ad litem grants do not permit distribution of estate assets.

3.2. Grants Limited as to Property

a) Administration Pendente Lite

Issued when there is ongoing litigation concerning the estate. The appointed administrator acts under court supervision with no powers of distribution.

b) Grant de Bonis Non

Granted when the original executor/administrator dies or becomes incapacitated before completing administration. New administrator completes distribution.

Case Law:

• Faith Wanjiku Maganjo v Rebean Muriithi Maganjo (eKLR) – Defined role of "administrator de bonis non" in completing estate administration.

3.3. Grants Limited as to Time

Applicable where the validity or existence of a will is uncertain or delayed.

• Probate of copy or draft of lost will – Granted when original was lost without intention by testator.
• Probate of copy where original exists abroad – Allowed when original is withheld abroad but action is urgent.
• Administration until will is produced – Temporary administration pending retrieval or discovery of will.

4. Legal and Practical Importance in the Kenyan Context

• Urgency: Limited grants allow dependants, especially minor children, to access funds for school fees and upkeep without unnecessary delay.
• Protection of Estate: Prevents wastage or unauthorized dealings with estate assets (e.g., rent, perishables).
• Court Control: All limited grants are subject to court supervision and specific limitations.
• Prevention of Intermeddling: Ensures only legally authorized persons act on behalf of the estate.

5. Recommendations for Legal Practitioners and Clients

• Apply early for limited grants in urgent circumstances.
• Use Grant ad Litem when legal representation of the estate is needed in a civil suit.
• Secure storage of will with a trusted legal advisor.
• Provide executor and family contacts to ensure swift action upon death.

6. Conclusion

Limited grants serve as a critical legal mechanism under Kenyan succession law to balance the need for urgent intervention with the requirement for orderly administration of estates. Legal practitioners should advise clients on their availability and use, particularly in safeguarding the welfare of dependants and preserving estate assets.

 

Analysis of Root of Title and Bona Fide Purchaser Doctrine under Dina Management Limited v County Government of Mombasa & 5 Others

A Legal Analysis of Root of Title and Bona Fide Purchaser Doctrine under Dina Management Limited v County Government of Mombasa & 5 Others

ISSUE

Whether an appellant's root of title is valid in light of constitutional and judicial requirements, and whether such a party qualifies as a bona fide purchaser for value where the title may have been acquired through an unlawful process.

LEGAL BACKGROUND

The Supreme Court decision in Dina Management Limited v County Government of Mombasa & 5 Others provides authoritative guidance on the legal requirements for establishing good title and the parameters of the bona fide purchaser doctrine in Kenya.

ANALYSIS

1. The Root of Title Must Be Lawful

The Supreme Court in Dina Management emphasized that the first and foundational step in determining the validity of a party’s title is an inquiry into the root of title, beginning with the initial allotment or alienation of the land. The Court held that any party claiming to be a bona fide purchaser for value must demonstrate that the entire chain of title is free from legal defects.

“To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment...” (Dina Management, para 94)

This approach places the burden on the purchaser or holder of the title to ensure that the title was derived from lawful processes, and not merely on the existence of a registered title.

2. A Title Is Not Indefeasible If Acquired Unlawfully

The Court further clarified that a title deed, though presumed valid, does not enjoy automatic indefeasibility if the process leading to its issuance violated the law. The legitimacy of the title is conditional upon the legality of the steps leading up to its registration.

“The title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.” (Dina Management, para 110)

Thus, a party cannot rely solely on possession of a title deed to assert ownership where the procedural integrity of that title is in doubt.

3. Constitutional Limits on the Right to Property

While Article 40(1) of the Constitution guarantees the right to acquire and own property, Article 40(6) introduces an important qualification: this protection does not extend to property found to have been unlawfully acquired.

“Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired.” (Dina Management, para 111)

Therefore, a party holding a title obtained through fraud, illegality, or irregular allocation cannot rely on constitutional protection to shield such property rights.

CONCLUSION

The legal position affirmed by the Supreme Court in Dina Management makes it clear that:

• A title deed, while a key document of ownership, must originate from a lawful process for it to be upheld.
• The doctrine of bona fide purchaser for value does not apply in cases where the root of title is tainted by illegality or irregularity.
• Article 40(6) of the Constitution expressly removes protection from such titles.

Accordingly, where an appellant’s root of title is found to be defective—particularly at the point of initial allotment or acquisition—the title is vulnerable to nullification, and the appellant cannot invoke the bona fide purchaser doctrine as a defense.

Notably, it is worth recomending that in all property transactions and litigation involving leasehold or freehold interests, practitioners and claimants must undertake thorough due diligence to trace the history of the title from first allocation. Where evidence of irregular or unlawful acquisition arises, the title is likely to be invalidated, regardless of registration status.

 

RENEWAL AND EXTENSION OF LEASEHOLD PROPERTIES IN KENYA

INTRODUCTION

In Kenya, land ownership is governed under two main land tenure systems:

1. Freehold Tenure, and
2. Leasehold Tenure.

1. Freehold Tenure

Freehold tenure refers to absolute ownership of land for an unlimited duration. Once land is acquired under this system, the owner has complete rights to the land and can pass it on to their heirs, sell it, or develop it as they please, subject to planning and zoning laws.

However, it is important to note that freehold ownership is restricted to Kenyan citizens.

• Foreign nationals, including foreign companies, are not allowed to hold freehold land in Kenya under the Constitution and the Land Control Act.
• This restriction is meant to protect Kenyan land from foreign control and ensure its availability for future generations.

2. Leasehold Tenure

Leasehold tenure refers to a system where land is owned by the government (national or county), and an individual or entity is granted the right to use the land for a specific period, usually 33, 50, 66, or 99 years, depending on the terms set out in the lease.

• The lessee (person granted the lease) is required to pay annual land rent to the government.
• At the expiry of the lease term, the land reverts to the lessor (usually the government) unless the lease is extended or renewed.
• For non-citizens, the maximum lease term allowed is 99 years, as per the Constitution of Kenya 2010.

 

RENEWAL OF EXPIRED LEASES

Renewal of a lease occurs after the original lease term has expired. This usually happens when the lessee fails to apply for an extension of the lease before its expiry.

• In such cases, the lessee must apply to renew the lease, which is treated as a new application, rather than a continuation of the previous lease.
• This process is not automatic and the government may impose new conditions, including:
• Change of land use,
• New valuation and rent assessment,
• Compliance with current planning and zoning regulations.

Key point: Failure to renew an expired lease in time could result in loss of legal interest in the property, and the government may allocate the land to another party.

 

EXTENSION OF LEASES (BEFORE EXPIRY)

This is the preferred and recommended process, where the lessee applies to extend the lease before it expires. This ensures continuity of ownership and avoids legal disputes or forfeiture of land rights.

Legal Framework

Under Section 13 of the Land Act, 2012, the National Land Commission (NLC) is required to:

1. Notify the registered lessee (owner) of the land at least five (5) years before the lease expires.
2. If the lessee does not respond within one (1) year, the NLC must:
• Publish the notice in two national newspapers,
• The lessee then has six (6) months from the date of publication to respond.

If the lessee still does not respond, the land may be treated as reverted public land and may be allocated to other individuals or entities.

Importance: Lessees are strongly advised to monitor their lease terms and initiate extensions early to avoid complications.

 

PROCESS FOR RENEWAL OR EXTENSION OF LEASES

This process involves multiple stakeholders including licensed professionals and government departments.

Step-by-Step Guide:

1. Engage a Licensed Physical Planner
• The lessee must hire a registered physical planner to prepare and submit planning documents.
• This includes requesting a Planning Brief and filling out PPA2 forms from the County Government where the land is located.
2. Submission of Planning Documents
• The Planning Brief and PPA2 forms (in triplicate) are submitted to the:
• Director of Land Administration (national government) or,
• County Land Administrator, depending on who owns the land.
3. Circulation of the Application
• The Land Administrator issues a circulation letter requesting input from:
• The Director of Physical Planning,
• The Director of Surveys,
• The County Physical Planner (in devolved units),
• These stakeholders review and provide comments or objections.
4. Letter of No Objection
• If no issues are raised, a Letter of No Objection is issued, signaling that the lease extension can proceed.
5. Provisional Approval
• The Director of Land Administration issues Provisional Approval for the extension or renewal of the lease, subject to final conditions being met.
6. Re-Survey of the Property
• A registered surveyor re-surveys the land to:
• Confirm boundaries,
• Update any changes,
• Generate a new Registry Index Map (RIM) for the parcel.
7. Re-Valuation of Land
• The government valuer conducts a valuation to determine:
• The current market value of the land,
• The new annual rent payable,
• Any premiums due to change in land use or location.
8. Final Approval
• After the re-survey and valuation, the Director of Land Administration issues the Final Approval for the lease extension.
9. Preparation of Legal Documents
• A licensed advocate prepares:
• The Surrender document (to relinquish the old lease),
• A new Lease Agreement for the extended term.
10. Issuance of New Title

• Upon registration, a new Leasehold Title Deed or Lease Instrument is issued, reflecting the new term and updated conditions.

 

CONCLUSION

The renewal and extension of leasehold titles in Kenya is a structured process that involves compliance with planning, survey, and legal requirements. Property owners should:

• Track their lease expiry dates,
• Initiate extension applications at least five years before expiry,
• Ensure compliance with all land use and planning regulations.

Engaging qualified professionals such as physical planners, land surveyors, valuers, and advocates is essential to ensure a smooth and successful process.

 

DISCLAIMER

This article is intended for general informational purposes only and does not constitute legal advice. Property owners are encouraged to seek guidance from qualified land law professionals. 

 

Legal Analysis on Procedural Fairness in Redundancy: The Case of Mwikali v Flame Tree Africa Limited [2025] KEELRC 1809 (KLR)

I. Introduction

This memorandum analyzes the decision in Mwikali v Flame Tree Africa Limited, where the Employment and Labour Relations Court found that the Respondent’s redundancy process was procedurally flawed despite issuing a formal one-month notice. The ruling emphasizes the importance of genuine notice, consultation, and fair implementation of redundancy under Kenyan employment law.

II. Issues

1. Whether a redundancy notice that purports to give one month’s notice is valid where the employee is effectively dismissed on the same day.
2. Whether instructing an employee to hand over company property on the same day as a redundancy notice nullifies the notice.
3. Whether the redundancy process adhered to the procedural requirements under the Employment Act.

III. Relevant Law

• Employment Act, 2007 (Kenya):
• Section 40(1): Sets out mandatory procedural requirements for redundancy, including:
• Issuance of at least one-month prior notice to the employee and the labour officer;
• Consultations with the employee or their representative;
• Criteria for selection (e.g., seniority, skills, etc.);
• Payment of redundancy dues (severance pay, accrued leave, etc.).
• Article 41 of the Constitution of Kenya, 2010: Guarantees the right to fair labour practices.
• Case Law Principles: Courts have emphasized that redundancy must be both substantively justified and procedurally fair.

IV. Case Summary: Mwikali v Flame Tree Africa Ltd [2025] KEELRC 1809 (KLR)

Facts:

• The Claimant received a redundancy notice letter dated 18 March 2021, indicating that she would be declared redundant after one month.
• However, in the same letter, the Claimant was instructed to surrender all company property by close of business on the same day.
• The Claimant challenged the validity of the redundancy process, arguing that it was procedurally unfair and not genuine.

Court’s Findings:

• The Court held that despite the formal indication of a one-month notice, the instruction to hand over company property on the same day indicated a constructive termination.
• The employer’s conduct showed it had no intention of retaining the Claimant during the purported notice period.
• The Court found that:
• No genuine notice was given;
• There was no opportunity for consultation, as required under Section 40 of the Act;
• The redundancy process was procedurally flawed and unfair.

V. Analysis

1. Form vs Substance in Redundancy Notice

This case confirms that redundancy notice must be real and effective — not just procedural formality. Simply stating “one month” on paper while forcing an immediate handover is evidence of bad faith and constructive dismissal.

2. Immediate Handovers Signal Immediate Termination

By instructing the Claimant to surrender all company property on the same day, the Respondent demonstrated that the employment relationship was immediately severed, contrary to the purported notice. This undermines the employee’s right to notice and time to adjust or consult.

3. Violation of Section 40 of the Employment Act

The Respondent failed to:

• Conduct genuine consultations;
• Allow the notice period to be effectively served;
• Comply with the spirit and letter of redundancy procedures.

4. Breach of Fair Labour Practices

Such conduct also violates Article 41 of the Constitution, which protects employees from arbitrary dismissal and ensures dignity in the termination process.

VI. Conclusion

The decision in Mwikali underscores the principle that redundancy must be both procedurally and substantively fair. Merely issuing a notice letter is not sufficient — the employer's actions must reflect a genuine intention to follow due process, including providing actual time for notice, conducting consultations, and treating the employee fairly during the transition.

VII. Recommendations

For employers to remain compliant:

1. Ensure the redundancy notice is genuine — do not require handovers or exit procedures until the notice period has lapsed or the employee has been properly relieved.
2. Conduct proper consultations with affected employees and the labour officer as per Section 40.
3. Allow employees to serve the full notice period or pay notice in lieu if immediate exit is intended — but be explicit and transparent.
4. Document all steps in the redundancy process to demonstrate good faith and legal compliance.
5. Train HR and management on the legal requirements of redundancy to avoid legal exposure and reputational damage.