Tax authority powers are constitutionally limited : The Case of Robert K. Ayisi v Kenya Revenue Authority & another [2018] KEHC 6948 (KLR)

1. Case Overview

• Parties:
• Petitioner: Dr. Robert K. Ayisi, then-acting County Secretary and Head of Public Service, Nairobi City County.
• Respondent: Kenya Revenue Authority (KRA).
• Interested Party: Nairobi City County Government.
• Outcome:
• Petition granted in favor of the petitioner.

2. Factual Background

• Initial Request:
  KRA, by a letter dated 14 March 2016, demanded transaction details (fee notes, dates, gross amounts, VAT, nature of payments) related to legal services rendered by Prof. Tom Ojienda to Nairobi County (2009–2016), under the Income Tax Act and VAT Act.
• Response:
  Dr. Ayisi replied on 24 March 2016, stating that relevant documents had been forwarded to the Ethics and Anti-Corruption Commission (EACC) in January 2015 and were unavailable.
• Further Demands:
  On 1 April 2016, KRA issued a notice under section 59(1) of the Tax Procedures Act (TPA), demanding a payment schedule. Dr. Ayisi complied by 28 April 2016, though fee notes were still unavailable.
• Additional Documentation:
  A letter on 26 September 2016 sought contract terms, invoices, withholding tax/VAT certificates, and even witness statements; KRA warned of sanctions under sections 99 and 100 TPA.
• Arrest and Detention:
  On 4 October 2016, KRA’s Criminal Investigations Department officers forcibly entered Dr. Ayisi’s office, arrested and frog‑marched him to Times Tower. He was detained for about three hours, humiliated, then released on condition he submits the documents within ten days.

 

3. Legal Issues

Dr. Ayisi’s petition raised several legal questions:

1.        Did KRA’s actions—particularly the arrest—violate constitutional rights to human dignity, freedom, privacy, fair administrative action, and rights of arrested persons?

2.        Were the following provisions of the TPA unconstitutional because they allowed arbitrary search, seizure, or demands without judicial oversight?

o    Sections 44(1) & (2) (seizure of goods);

o    Sections 60(1) & (3) (search powers over premises/documents);

o    Section 59(4) (overriding confidentiality and privilege).

3.        Was Dr. Ayisi entitled to declarations, damages, and protective orders?

4. High Court Findings and Decision

Justice Odunga held:

• Violation of Rights:
  KRA’s conduct—particularly the coercive arrest and treatment of Dr. Ayisi—violated his rights under Articles 29 (freedom and security), 31 (privacy), 47 (fair administrative action), and 49 (rights of arrested persons).
• Unconstitutional TPA Provisions:
• Sections 44(1) & (2) and Sections 60(1) & (3) were declared unconstitutional for enabling seizure and searches without court oversight, infringing Article 31(b).
• Section 59(4) was also struck down for overriding confidentiality/professional privilege.
• Remedies:
  The court granted declarations that KRA’s actions and the TPA provisions were unconstitutional, awarded KSh 2 million in compensation to Dr. Ayisi, and granted costs in his favor.

5. Significance

This case stands as a landmark affirmation that:

• Tax authority powers are constitutionally limited—executive enforcement must respect privacy, due process, and judicial oversight.
• Arbitrary or coercive state power, even by statutory bodies, cannot override constitutional safeguards.
• Compensation is warranted when constitutional violations occur, reinforcing accountability.

6. Appellate Resolution

• Court of Appeal Ruling (May 2023):
  In Civil Appeal (Application) 287 of 2018, KRA’s appeal was dismissed in part. The appellate court upheld Dr. Ayisi’s ban on arrest but restored KRA’s powers to attach property and seize documents under the challenged TPA provisions.

Summary Table

Issue	High Court (2018)	Court of Appeal (2023)
Search & seizure under TPA	Unconstitutional (Sections 44, 59, 60 struck down)	Powers restored
Right to privacy & fair treatment	Violated by coercive arrest and demands	Arrest prohibition upheld (Dr. Ayisi cannot be arrested)
Financial remedies	Compensation awarded (KSh 2 million)	No reported alteration of compensation

 Full Case Robert K. Ayisi v Kenya Revenue Authority & another [2018] KEHC 6948 (KLR)

Fraud vitiates title, and third parties—especially banks—must take extra precautions when dealing with land transactions - The Case of Musa v Musa & 6 Others [2025]

Facts

Eric Musa challenged a series of land transfers involving family land, alleging fraud and forgery in the registration process. He claimed that the 1st respondent, a family member, unlawfully transferred land into her name and then to third parties, including a bank.

Legal Issues

1. Whether the title transfers were tainted by fraud.
2. Whether the High Court erred in dismissing claims despite irregularities.
3. Whether third-party rights (like the bank's) were protected despite the fraud.

Holding

The Court of Appeal allowed the appeal, holding that:

• The transactions were fraudulent.
• The titles were improperly obtained and therefore void.
• The Land Registrar and other parties acted outside lawful procedures.

Legal Principles

• Fraud nullifies title under Kenyan land law.
• Registered title is not indefeasible where fraud is proven.
• Banks and third parties cannot rely on defective titles without genuine due diligence.

Significance

This case strengthens safeguards against fraudulent land dealings, even where third parties like banks are involved. It reaffirms that courts will prioritize lawful ownership over procedural finality.

🔗 Read the full judgment

 

Succession Law in Kenya – Overview & Procedure (TESTATE AND INTESTATE)

A Detailed Exposition on Succession Law in Kenya

I. Applicable Legal Framework

Succession in Kenya is governed primarily by:

1.        The Law of Succession Act (Cap 160, Laws of Kenya)

o    This is the principal legislation that regulates the administration of deceased persons' estates, whether testate (with a will) or intestate (without a will).

2.        The Probate and Administration Rules (Cap 160 Sub Leg)

o    These are subsidiary laws that provide the procedural framework for implementing the Law of Succession Act. They outline the forms, timelines, and procedures for applying for grants and managing estates.

 

II. Categories of Probate

Succession is broadly classified into:

1. Non-Contentious Probate (Probate in Common Form)

• Involves straightforward succession matters where there is no dispute.
• Typically applies when a valid will is available, and beneficiaries are in agreement.
• Often results in a faster process as there is no litigation.

2. Contentious Probate (Probate in Solemn Form)

• Involves disputes, such as contesting the validity of a will or exclusion from inheritance.
• Requires formal court proceedings and is determined after hearing evidence from all parties.
• Common where there are multiple spouses, unrecognized children, or unclear property claims.

 

III. Types of Succession

1. Testate Succession

• Occurs when the deceased leaves a valid will.
• The will must meet legal requirements under Sections 5–11 of the Law of Succession Act (e.g., made by a person of sound mind, witnessed by at least two witnesses).
• The named executors in the will apply for grant of probate to administer the estate.

2. Intestate Succession

• Occurs when:
• The deceased did not leave a will.
• The will is declared invalid.
• Distribution of the estate is done according to the rules in Part V of the Act, which outlines how different categories of relatives inherit (e.g., spouse, children, parents, siblings).

 

IV. Constitutional Safeguards

The Constitution of Kenya, 2010, provides key protections in succession matters:

• Article 27 – Ensures equality before the law and prohibits discrimination on grounds such as gender, marital status, or age. This supports equitable inheritance for both male and female beneficiaries.
• Article 40 – Protects the right to acquire and own property, which extends to inheritance rights.

Note: These provisions ensure that widows, daughters, and persons from marginalized communities are not unfairly excluded from inheriting.

 

V. Procedure for Applying for Grant of Representation

A. Who Can Apply?

Under Section 66 of the Law of Succession Act, priority is given to:

1.        Surviving spouse(s) (with or without other beneficiaries).

2.        Other beneficiaries in order of interest (e.g., children, parents).

3.        The Public Trustee.

4.        Creditors.

In partial intestacy (where only part of the estate is not covered by a will), an executor who proves the will may still be granted letters of administration.

 

B. Disqualification from Applying (Section 56)

The following persons cannot apply for grant:

• Minors
• Persons of unsound mind
• Bankrupt individuals

Also, no more than four qualified persons can apply jointly.

 

C. Application Requirements (Section 51 & Rules 7–14)

The application must include:

• Full names, date/place of death, and last known residence of the deceased
• Relationship of applicant to the deceased
• Whether a will exists (written/oral) and executor details
• Names/addresses of all beneficiaries, including:
• Surviving spouses
• Children (including of deceased children)
• Parents, siblings
• Full inventory of assets and liabilities
• If a will exists:
• Original or authenticated copy if lost
• If oral, names of witnesses must be provided

 

VI. Required Forms and Supporting Documents

To be filed at the High Court Registry:

Document	Description
P&A 80	Petition (Summons format)
P&A 5	Affidavit in support
P&A 12	Statement of Means
P&A 11	Affidavit of Justification for sureties
P&A 57	Personal Surety Guarantees
P&A 38	Consent form (from other adult beneficiaries)
Death Certificate	Mandatory proof of death
Chief’s Letter	Confirms identity of beneficiaries
Title documents	Proof of ownership of assets
Original Will	For testate succession only

 

VII. Gazette Notice and Objections

• The application is published in the Kenya Gazette as a Succession Cause.
• A 30-day period is provided for the public to lodge any objections.
• If an objection is filed, a hearing is conducted and the matter may become contentious.

If no objections arise, the applicant is issued a Grant of Letters of Administration (for intestate estates) or a Grant of Probate (for testate estates).

🛑 Important: The grant does not authorize distribution. The holder must only collect, preserve, and manage the estate until confirmation.

 

VIII. Confirmation of Grant

When?

• After 6 months from the date of the grant.

How?

• Application made under Section 71(3) and Rule 40
• Court is moved via Summons accompanied by:
• Affidavit in Support
• Schedule of Assets & Proposed Distribution (names of beneficiaries and their share)

The court will assess:

• Whether all beneficiaries have been accounted for
• Whether the proposed distribution is fair
• Whether any disputes remain unresolved

 

IX. Final Distribution and Closure

Once the grant is confirmed:

• The administrator can distribute the estate as per the court-approved schedule.
• After all duties are completed, the administrator can apply to close the estate and be discharged from further responsibility.

 

Conclusion

Succession law in Kenya is structured to:

• Ensure orderly transfer of assets
• Protect family members and dependants
• Safeguard constitutional rights, especially of vulnerable groups

The process requires diligence in gathering documentation, following legal procedure, and engaging with all beneficiaries to avoid conflicts.

 

Step-by-Step Process for Registering Sectional Properties

Step 1: Preparation and Documentation

1. Draft a Sectional Plan: Engage a registered surveyor to prepare a sectional plan of the property, which includes detailed diagrams showing the boundaries of individual sections and common areas.

   
   

2. Create a Declaration of Condominium: Prepare a declaration that outlines the ownership structure, rights, and responsibilities of individual owners, and the management of common areas.

   
   

3. Develop Bylaws: Draft bylaws that govern the operation and management of the sectional property, including rules for maintenance, usage of common areas, and dispute resolution procedures.

Step 2: Obtain Necessary Approvals

1. Consult with Local Authorities: Ensure that the sectional plan and bylaws comply with local zoning and building regulations. Obtain any necessary approvals or permits from municipal or county authorities.

   
   

2. Secure Consent from Property Owners: If the property is already occupied, obtain written consent from existing owners to proceed with the registration.

Step 3: Submit Application for Registration

1. Prepare Registration Documents: Compile the following documents for submission to the Registrar of Titles:

   
   

   • The sectional plan, certified by a registered surveyor.

     
     

   • The by laws for the management of the property.

     
     

   • Proof of ownership or a title deed for the property.

     
     

   • Consent from existing property owners (if applicable).

     
     

2. File Application with the Registrar: Submit the completed application and supporting documents to the Registrar of Titles at the relevant land registry office. Pay the required registration fees.

   
   

Step 4: Registrar’s Review and Approval

1. Review Process: The Registrar will review the submitted documents to ensure they comply with the Sectional Properties Act and other relevant regulations.

   
   

2. Approval and Registration: Upon approval, the Registrar will register the sectional property and issue a certificate of registration, which includes details of individual ownership sections and common areas.

   
   

Step 5: Establish Management Committee or HOA

1. Form a Management Committee: Establish a management committee or HOA to oversee the administration and maintenance of common areas. This committee is typically elected by property owners and is responsible for enforcing bylaws and managing communal services.

   
   

2. Register the Management Committee: Register the management committee with the relevant authorities if required, and ensure it operates in accordance with the by laws.

   
   

Step 6: Issuance of Title Deeds

1. New title deeds are issued for each sectional unit. The original register is closed, and new registers are opened for each unit.

   
   

2. Owners will not incur additional stamp duty if they paid the requisite fees during the registration of long-term leases.