Legitimate Expectation and the Evolving Nature of Fixed-Term Employment in Kenya: A Commentary on Changalwa v Unga Limited [2025] KEELRC 1389 (KLR)

1. Introduction

The judgment in Changalwa v Unga Limited represents a pivotal development in the jurisprudence of Kenyan employment law, particularly regarding the interface between fixed-term contracts and the constitutional guarantee of fair labour practices. The case interrogates whether an employee’s prolonged engagement on consecutive fixed-term contracts, coupled with treatment equivalent to that of permanent staff, can create a legitimate expectation of renewal or prior notice of non-renewal.

Through this decision, the Employment and Labour Relations Court (ELRC) reaffirmed its commitment to constitutionalising employment relations and ensuring that formal contractual arrangements do not undermine substantive fairness. The court’s reasoning reflects an increasingly purposive interpretation of Article 41 of the Constitution of Kenya, 2010, and a recognition that the doctrine of legitimate expectation—traditionally confined to public and administrative law—has a central role in promoting equity in the workplace.

2. Factual Matrix

The claimant had served Unga Limited for thirteen consecutive years under a series of fixed-term contracts. Despite the ostensibly temporary character of these arrangements, the claimant was enrolled in a gratuity scheme reserved exclusively for permanent employees.

Upon expiry of the final contract, the respondent neither renewed the agreement nor gave advance notice of non-renewal. The claimant contended that the employer’s conduct over the years—especially the inclusion in permanent staff benefits—had generated a legitimate expectation of continued employment or, at minimum, of notice prior to disengagement.

Conversely, the employer maintained that the contract had lapsed by effluxion of time and that the doctrine of legitimate expectation was inapplicable to fixed-term contracts, which, by definition, are self-terminating.

3. Issue for Determination

The court was invited to determine whether continuous employment under successive fixed-term contracts, combined with treatment indistinguishable from that of permanent employees, could give rise to a legitimate expectation of renewal or reasonable notice of non-renewal, and whether failure to meet such expectation amounted to unfair labour practice.

4. Judicial Determination

The ELRC held that the claimant’s long-term service, coupled with participation in a gratuity scheme reserved for permanent employees, created a legitimate expectation of renewal or, at the very least, advance notice of non-renewal. The respondent’s abrupt cessation of the employment relationship was found to contravene the claimant’s rights under Article 41 of the Constitution and Section 45 of the Employment Act (2007).

The court therefore declared the non-renewal procedurally and substantively unfair, awarding appropriate remedies by way of compensation and/or payment in lieu of notice.

5. Analytical Discussion

5.1 The Nature of Fixed-Term Contracts

A fixed-term contract is one whose duration is defined at the outset and which ordinarily terminates automatically upon expiry. Kenyan courts have consistently recognised that, absent express agreement, no expectation of renewal arises from such contracts. This principle was reaffirmed in Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki.

Nevertheless, the practical realities of modern employment often complicate this strict contractual position. Many employers engage workers on rolling fixed-term contracts spanning several years, effectively creating indefinite employment relationships in substance, though not in form. Changalwa exposes the tension between contractual orthodoxy and equitable fairness, emphasising that adherence to formal expiry clauses cannot legitimise practices that amount to disguised permanency.

5.2 The Doctrine of Legitimate Expectation in Employment Relations

The doctrine of legitimate expectation, a construct of administrative law, traditionally protects individuals from arbitrary deviation from established policies or representations by public authorities. In employment law, its adaptation serves a similar purpose—shielding employees from abrupt, unjustified, or inconsistent conduct by employers who have fostered an expectation of continuity.

In Changalwa, the court applied this doctrine to the employment context, holding that legitimate expectation arises where:

1. There is a consistent pattern of contract renewals;
2. The employer’s conduct conveys an assurance of continued engagement; and
3. The employee reasonably relies on that assurance to expect renewal or at least notice of cessation.

The decision echoes earlier jurisprudence such as Elizabeth Washeke & Others v Airtel Networks (K) Ltd and Transparency International Kenya v Sheila M. M’Mbijjewe & Others, both of which recognised that legitimate expectation may arise where an employer’s actions undermine the predictability and fairness of employment relationships.

5.3 Constitutionalisation of Employment Fairness

The court’s reasoning reflects the ongoing constitutionalisation of employment law in Kenya. Article 41(1) of the Constitution guarantees every worker the right to fair labour practices, while Section 45(2) of the Employment Act prohibits unfair termination. Although non-renewal of a fixed-term contract does not technically amount to termination, the court adopted a substantive approach—holding that the spirit of the Constitution demands fairness in all employment decisions, including decisions not to renew.

By invoking Article 41, the court moved beyond the confines of contractual formalism and infused the employment relationship with constitutional morality—a recognition that fairness, good faith, and transparency are not mere aspirations but binding obligations on employers. This interpretation situates Changalwa within a transformative constitutional framework where the substance of justice supersedes the form of contract.

5.4 Fair Labour Practice and the Rule of Good Faith

The decision reinforces the principle that employers must act in good faith and with procedural transparency when deciding not to renew fixed-term contracts. Even where renewal is not guaranteed, fairness demands that employees be given adequate notice to plan for transition.

The court implicitly recognised that prolonged reliance on short-term contracts may constitute an abuse of managerial discretion, especially where the nature of work is permanent and ongoing. The case therefore contributes to the development of an equitable jurisprudence preventing employers from using fixed-term labels to circumvent obligations associated with permanent employment—such as job security, redundancy procedures, and long-term benefits.

5.5 Policy and Institutional Implications

From a policy perspective, Changalwa invites employers to re-examine the structure and administration of fixed-term engagements. The following practices emerge as essential for compliance with fair labour standards:

1. Transparency: Communicate renewal or non-renewal decisions in advance and record the reasons for discontinuation.
2. Role Segregation: Avoid conflating permanent and fixed-term benefit schemes unless justified by clear operational rationale.
3. Continuity Assessment: Where employment is continuous and the position permanent in nature, consider conversion to an indefinite contract to reflect reality.
4. Procedural Safeguards: Ensure that decisions regarding non-renewal are accompanied by consultation and fair notice to the employee.

Adherence to these principles not only mitigates legal exposure but also enhances institutional reputation and employee morale.

6. Ratio Decidendi

Where an employee serves for an extended period under successive fixed-term contracts and receives treatment equivalent to that of permanent staff, the employer’s conduct may give rise to a legitimate expectation of renewal or prior notice of non-renewal. Failure to meet that expectation constitutes a breach of fair labour practice, contrary to Article 41 of the Constitution and Section 45 of the Employment Act (2007).

7. Significance of the Decision

Changalwa is emblematic of a broader judicial trend in which Kenyan courts seek to reconcile contractual certainty with social justice. It affirms that employment relationships are not merely commercial but are constitutional and relational, grounded in mutual trust and fairness.

By extending the doctrine of legitimate expectation into private employment, the court fortifies the normative foundation of Kenyan labour law, aligning it with global best practices and ILO standards that emphasise security of tenure and fair treatment.

The decision thus marks a continued evolution from formalist contract enforcement to transformative adjudication—an approach that evaluates employment relations through the lens of equality, good faith, and constitutional justice.

8. Conclusion

The ruling in Changalwa v Unga Limited underscores the judiciary’s insistence that fairness and good faith are the cornerstones of modern employment relations. Employers who perpetuate long-term fixed-term arrangements while extending permanent benefits must now recognise that such conduct may give rise to enforceable legitimate expectations.

The case stands as a cautionary precedent: the form of a contract cannot defeat the substance of fairness. As Kenyan employment law continues to evolve under the Constitution’s transformative ethos, Changalwa will likely serve as a reference point in defining the contours of legitimate expectation and fair labour practice in the era of flexible work arrangements.

References

1. Changalwa v Unga Limited [2025] KEELRC 1389 (KLR).
2. Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR.
3. Elizabeth Washeke & Others v Airtel Networks (K) Ltd [2013] eKLR.
4. Transparency International Kenya v Sheila M. M’Mbijjewe & 2 Others [2022] eKLR.

 

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

Impartiality and Procedural Fairness in Disciplinary Proceedings: An Analysis of Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR)

1. Introduction

The decision in Mabonga v Agricultural Finance Corporation represents a significant development in Kenyan employment jurisprudence concerning procedural fairness and the principle of impartiality in disciplinary proceedings. The Employment and Labour Relations Court (ELRC) reaffirmed the constitutional and statutory expectation that employees facing disciplinary action must be subjected to a process that is both substantively justified and procedurally fair. Central to this fairness is the requirement that decision-makers be impartial and independent from those who conducted the investigations.

This commentary examines the factual matrix, legal reasoning, and broader implications of the judgment, situating it within the wider framework of Kenyan labour law and comparative administrative justice principles.

2. Factual Background

The claimant, an employee of the Agricultural Finance Corporation (AFC), was dismissed for alleged negligence and misconduct. The disciplinary process revealed that one member of the disciplinary panel had actively participated in the investigations preceding the hearing. Specifically, the individual had extracted and analyzed data from the claimant’s official computer, forming part of the evidence presented during the disciplinary hearing.

The claimant challenged his termination, asserting that the process was procedurally unfair because a person who participated in the investigative phase also sat on the disciplinary panel and interrogated him during the hearing. The respondent, however, maintained that the dismissal was based on valid reasons supported by evidence.

3. Issues for Determination

The court was primarily called upon to determine:

1. Whether the inclusion of an investigator in the disciplinary panel compromised the impartiality of the hearing and rendered the process procedurally unfair; and
2. Whether, despite the existence of valid grounds for dismissal, the termination could stand in light of any procedural irregularities.

4. The Court’s Holding

The Employment and Labour Relations Court held that the participation of a person who had conducted investigations in the disciplinary panel tainted the process with procedural unfairness. The court reasoned that the dual role of investigator and adjudicator violated the fundamental rule of natural justice that no person should be a judge in their own cause (nemo judex in causa sua).

While the court accepted that the employer had established valid reasons for dismissal as contemplated under Sections 43 and 45 of the Employment Act, 2007, it nonetheless found that the dismissal was procedurally unfair under Section 41 of the Act and Article 47 of the Constitution of Kenya, 2010, which guarantees the right to fair administrative action. Consequently, the termination was declared unfair, and the claimant was entitled to appropriate remedies.

5. Legal Analysis

5.1 Impartiality as a Cornerstone of Procedural Fairness

The court’s reasoning emphasizes that impartiality is an essential element of procedural fairness in employment law. The decision underscores that fairness is not confined to allowing an employee an opportunity to respond but extends to ensuring that the adjudicating body is free from bias or pre-judgment.

The participation of an investigator in the decision-making process undermines the objectivity of the disciplinary panel. As the court observed, such involvement creates a perception of bias that is incompatible with the requirements of natural justice. This approach mirrors the judicial reasoning in Republic v Public Service Commission ex parte Peter Githinji & Another, where the High Court held that decision-making bodies must be both independent and seen to be independent.

5.2 Substantive versus Procedural Fairness

The decision draws a sharp distinction between substantive justification and procedural propriety. Under Section 43 of the Employment Act, an employer must demonstrate valid and fair reasons for termination. However, under Section 41, the employer must also ensure that the process leading to termination is procedurally fair.

In Walter Ogal Anuro v Teachers Service Commission, the ELRC held that a termination may be substantively justified but still unfair if the process is defective. Mabonga reinforces this principle, highlighting that even when misconduct is established, procedural integrity remains indispensable.

5.3 The Rule Against Bias

The rule against bias, encapsulated in the maxim nemo judex in causa sua, requires that no person with a vested interest in the outcome of a matter should participate in adjudicating it. The court’s reasoning in Mabonga is consistent with long-standing common law and constitutional principles protecting administrative impartiality.

By allowing an investigator to sit on the disciplinary panel, the employer conflated investigative and adjudicative roles, thereby breaching the structural safeguards designed to ensure neutrality. The decision thus reinforces the necessity of institutional separation between fact-finding and decision-making functions within organizational disciplinary frameworks.

5.4 Comparative Jurisprudence and International Standards

The decision resonates with international labour standards, particularly Article 7 of ILO Convention No. 158, which provides that an employee shall not be dismissed for misconduct without being given an opportunity to defend themselves before an impartial authority. The principle of impartial adjudication has also been affirmed in comparative jurisdictions such as South Africa, where the Code of Good Practice on Dismissal (Schedule 8 of the Labour Relations Act, 1995) mandates procedural fairness and impartiality in workplace hearings.

6. Practical and Institutional Implications

Mabonga offers critical guidance for employers and human resource practitioners in structuring disciplinary processes. The decision underscores the need to establish clear role demarcations within disciplinary systems, including:

• Investigators, who gather and analyze evidence;
• Disciplinary panels, which independently assess evidence and determine culpability; and
• Appeal panels, which provide a separate layer of review to correct any procedural defects.

Failure to maintain such distinctions exposes employers to the risk of judicial intervention, even where the grounds for dismissal are otherwise legitimate.

Furthermore, the decision serves as a reminder that procedural fairness has both instrumental and intrinsic value: it not only protects employees from arbitrary decision-making but also enhances the credibility and legitimacy of internal disciplinary mechanisms.

7. Conclusion

The Mabonga decision represents a reaffirmation of the primacy of procedural fairness in Kenyan employment law. The court’s insistence on impartiality as an indispensable component of a fair hearing underscores the judiciary’s commitment to upholding constitutional and statutory guarantees of fair administrative action.

Ultimately, the ruling sends a clear message that justice in employment relations must not only be done but must be seen to be done. Employers must therefore ensure that those who investigate alleged misconduct do not also adjudicate upon it, lest the entire process be rendered procedurally invalid.

Mabonga v Agricultural Finance Corporation thus stands as a pivotal precedent that strengthens the architecture of fairness, transparency, and accountability in disciplinary processes within both public and private employment sectors in Kenya.

References

1. Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR).
2. Republic v Public Service Commission ex parte Peter Githinji & Another [2013] eKLR.
3. Walter Ogal Anuro v Teachers Service Commission [2013] eKLR.

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

 

Commentary on Family and Succession Law in Kenya: Statutory Framework, Judicial Interpretation, and Emerging Trends

1. Introduction

Family and Succession Law occupies a central position within Kenya’s legal system. It governs personal and property relations within the family unit — encompassing marriage, divorce, maintenance, custody of children, and the devolution of property upon death. The area is anchored in Kenya’s Constitution of 2010, which emphasizes equality, human dignity, and protection of the family as the fundamental unit of society (Article 45).

The legal regime is not only statutory but also constitutional and, in some instances, customary and religious. Historically, Kenya operated under plural systems of family law derived from English common law, African customary law, Islamic law, and Hindu personal law. The Marriage Act, 2014, the Matrimonial Property Act, 2013, and the Law of Succession Act (Cap 160) were enacted to harmonize these systems and promote legal uniformity.

2. The Law of Succession Act (Cap 160): The Cornerstone of Succession Jurisprudence

The Law of Succession Act, enacted in 1981, remains the principal legislation governing the devolution of property after death in Kenya. It applies universally to all persons domiciled in Kenya at the time of death, except where the deceased professed the Islamic faith, in which case Sharia law applies (s. 2(3)).

2.1 Testate Succession

Under sections 5–11, any person of sound mind may make a will to determine how their estate shall devolve upon death. A valid will must be made voluntarily and duly executed in accordance with section 11. The process of implementing a will involves obtaining a Grant of Probate, which confirms the executor’s authority to administer the estate.

The courts have consistently emphasized testamentary freedom while upholding statutory protections for dependants. In In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR, the High Court reaffirmed that a will cannot completely disinherit a dependant who was maintained by the deceased; such a person may apply for reasonable provision under section 26 of the Act.

2.2 Intestate Succession

Intestate succession arises where a person dies without a valid will. The applicable rules are set out under Part V (sections 32–42). The Act classifies beneficiaries hierarchically — beginning with the surviving spouse and children, followed by parents, siblings, and other relatives.

For instance, under section 35, where a deceased leaves a surviving spouse and children, the spouse acquires a life interest in the estate, which determines upon remarriage or death, whereupon the property passes absolutely to the children. The principle of equitable distribution was affirmed in Rono v Rono & Another [2005] eKLR, where the Court of Appeal held that while equality is desirable, equity — based on the needs and circumstances of each beneficiary — should guide the court.

3. Marriage and Matrimonial Property: Equality and Autonomy under the 2010 Constitution

The Marriage Act, 2014 unified diverse marriage systems into a single statutory framework. Section 6 recognizes five types of marriage: Christian, civil, customary, Hindu, and Islamic. The Act underscores that marriage is a voluntary union between a man and a woman, entered into with free consent (s. 3(1)).

3.1 Dissolution of Marriage

The Act provides distinct procedures for dissolution depending on the form of marriage. For example, Christian and civil marriages may be dissolved on grounds of adultery, cruelty, desertion, or irretrievable breakdown (ss. 65–70). The courts exercise discretion to ensure fairness, especially where children and property are involved.

3.2 Matrimonial Property and Gender Equality

The Matrimonial Property Act, 2013 complements the Marriage Act by defining matrimonial property (s. 6) and establishing principles of ownership (s. 7). It provides that property acquired during marriage vests in both spouses according to their contribution, whether direct (financial) or indirect (non-financial).

In Echaria v Echaria [2007] eKLR, the Court of Appeal initially adopted a restrictive view, requiring proof of monetary contribution. However, post-2010 jurisprudence — guided by Article 45(3) of the Constitution — has broadened the concept of contribution to include domestic work, childcare, and emotional support. This approach was reaffirmed in P.N.N v Z.W.N [2017] eKLR, where the court recognized homemaking as a substantial contribution warranting equal property rights.

The evolving interpretation reflects Kenya’s constitutional commitment to substantive gender equality and the equal dignity of spouses during and after marriage.

4. The Children Act, 2001 (Revised 2022): Upholding the Best Interests of the Child

The Children Act operationalizes the rights of the child under Article 53 of the Constitution, which guarantees every child the right to parental care, education, and protection from abuse or neglect. The 2022 revision strengthened provisions on adoption, guardianship, and child welfare in line with international instruments such as the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).

4.1 Parental Responsibility and Custody

Sections 23 and 24 of the Act impose joint parental responsibility on both parents, regardless of marital status. Custody decisions are guided by the best interests of the child (s. 83). In J.O v S.A.O [2016] eKLR, the court emphasized that the welfare of the child overrides parental conflict, and custody should be awarded to the parent most capable of meeting the child’s needs.

4.2 Maintenance and Guardianship

Parents and guardians are legally obligated to provide maintenance under section 94. The Act also introduces clear procedures for guardianship orders, ensuring continuity of care in the event of parental incapacity or death.

5. Administration of Estates: Probate, Letters of Administration, and Judicial Supervision

The probate and administration process ensures that a deceased person’s property is lawfully distributed to rightful beneficiaries.

5.1 Probate and Letters of Administration

Where there is a valid will, executors apply for a Grant of Probate; where there is no will, administrators seek Letters of Administration Intestate under section 54. The court, upon verifying the petition, issues the grant, which must later be confirmed (s. 71) before distribution.

In In re Estate of L.N.W (Deceased) [2016] eKLR, the High Court underscored the importance of transparency and procedural fairness in the confirmation process, holding that all beneficiaries must be notified and heard.

5.2 Role of the Family Division of the High Court

The Family Division of the High Court, established under Article 165(3) of the Constitution and the Judicature Act, has jurisdiction to handle succession disputes, adoption applications, and matrimonial property cases. It also supervises subordinate courts in matters of limited monetary or geographical jurisdiction.

6. Dependant’s Relief and Equitable Distribution

A hallmark of Kenya’s succession regime is the protection of dependants. Under section 26 of the Law of Succession Act, any person maintained by the deceased who has not been adequately provided for may apply for reasonable provision from the estate.

In In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR, the court affirmed that dependency is a question of fact and that the law intends to prevent hardship to those who relied on the deceased during their lifetime. This principle aligns with the constitutional value of human dignity (Article 28) and the duty to protect vulnerable family members.

7. Emerging Trends and Constitutional Dimensions

Kenya’s 2010 Constitution has profoundly reshaped the interpretation of Family and Succession Law. Courts increasingly apply constitutional values to ensure that family relations are governed by equality, fairness, and social justice.

7.1 Equality and Non-Discrimination

Article 27 prohibits discrimination on grounds of gender, marital status, or culture. Consequently, courts have struck down discriminatory customary practices that disadvantage women and children. In Rono v Rono (supra), the Court of Appeal held that daughters have equal inheritance rights with sons, a principle now firmly entrenched in law.

7.2 Recognition of Non-Monetary Contribution

Recent jurisprudence acknowledges unpaid domestic labour as a form of contribution to matrimonial property, consistent with global trends in gender justice.

7.3 Intersection with Customary and Religious Law

Although statutory law prevails, customary law continues to influence succession — particularly in rural areas and among certain communities. The courts balance these customs with constitutional standards, ensuring that traditional practices conform to the Bill of Rights (Article 2(4)).

8. Conclusion

Family and Succession Law in Kenya represents a synthesis of statutory precision, constitutional vision, and judicial innovation. The combined effect of the Law of Succession Act, the Marriage Act, the Matrimonial Property Act, and the Children Act is a coherent framework that upholds both individual rights and family solidarity.

However, persistent challenges — such as delays in succession proceedings, patriarchal resistance to gender equality, and limited public awareness — continue to impede full realization of these rights. Future reforms should focus on procedural efficiency, access to justice, and integration of customary law within the constitutional order.

Ultimately, Kenya’s Family and Succession Law exemplifies the legal system’s evolving attempt to balance personal autonomy with family responsibility, ensuring that justice within the family remains both accessible and equitable.

Select Bibliography

• Constitution of Kenya, 2010.
• Law of Succession Act (Cap 160, Laws of Kenya).
• Marriage Act, No. 4 of 2014.
• Matrimonial Property Act, No. 49 of 2013.
• Children Act, No. 8 of 2001 (Revised 2022).
• Echaria v Echaria [2007] eKLR.
• Rono v Rono & Another [2005] eKLR.
• In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR.
• P.N.N v Z.W.N [2017] eKLR.
• J.O v S.A.O [2016] eKLR.
• In re Estate of L.N.W (Deceased) [2016] eKLR.

 

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

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.