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You searched for cases with the following details ; Filter Judge Name : David Shikomera Majanja.
Elite Intelligent Transport Systems Limited V Gulf Africa Bank Limited & Another [2021] EKLR
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Case Number: Civil Case E240 of 2020 |
Date Delivered: 24 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: Elite Intelligent Transport Systems Limited v Gulf Africa Bank Limited & Garam Auctioneers
Advocates:
Citation: Elite Intelligent Transport Systems Limited v Gulf Africa Bank Limited & another [2021] eKLR
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Argos Furnishers Limited V Comat Trading Company Limited [2021] EKLR
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Case Number: Civil Case 24 of 2019 |
Date Delivered: 22 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Law Courts)
Parties: Argos Furnishers Limited v Comat Trading Company Limited
Advocates:
Citation: Argos Furnishers Limited v Comat Trading Company Limited [2021] eKLR
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Palaeh Limited V Commissioner Of Investigations
And Enforcement [2021] EKLR
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Case Number: Tax Appeal E009 of 2021 |
Date Delivered: 09 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: Palaeh Limited v Commissioner of Investigations and Enforcement
Advocates:
Citation: Palaeh Limited v Commissioner of Investigations
and Enforcement [2021] eKLR
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National Housing Corporation V Custom General Construction Limited [2021] EKLR
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Case Number: Miscellaneous Application E38 of 2020 |
Date Delivered: 05 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: National Housing Corporation v Custom General Construction Limited
Advocates:
Citation: National Housing Corporation v Custom General Construction Limited [2021] eKLR
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Samuel Mburu Gitere & Another (Both Suing On Behalf Of Gitere Kahura Investments Limited) V Kenneth Kimari Gitere & 5 Others [2021] EKLR
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Case Number: Civil Case 119 of 2016 |
Date Delivered: 05 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: Samuel Mburu Gitere & Anne Wanjiru Gitere (Both Suing on behalf of Gitere Kahura Investments Limited) v Kenneth Kimari Gitere, David Wakangu Gitere, National Bank of Kenya, Chabrin Agencies Limited, Co-operative Bank of Kenya Limited & Lucas Waithaka Gitere
Advocates:
Citation: Samuel Mburu Gitere & another (Both Suing on behalf of Gitere Kahura Investments Limited) v Kenneth Kimari Gitere & 5 others [2021] eKLR
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China Road & Bridge Corporation V Commissioner Of Domestic Taxes [2021] EKLR
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Case Number: Tax Appeal E003 of 2020 |
Date Delivered: 05 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: China Road & Bridge Corporation v Commissioner of Domestic Taxes
Advocates:
Citation: China Road & Bridge Corporation v Commissioner of Domestic Taxes [2021] eKLR
In the absence of an employer-employee relationship, the person paying for services rendered is not subject to pay as you earn tax
China Road & Bridge Corporation v Commissioner of Domestic Taxes [2021] eKLR
Tax Appeal No. E003 of 2020
High Court at Nairobi
DS Majanja, J
February 5, 2021
Reported Kakai Toili
Tax Law – income tax - pay as you earn tax (PAYE) – where payment for services rendered were made in the absence of an employer-employee relationship - whether PAYE was payable by a person paying for services rendered absent an employer-employee relationship – Income Tax Act, Cap 470, sections 3(1) and (2), 5(2) and 37.
Civil Practice and Procedure – appeals – appeals from the Tax Appeals Tribunal to the High Court – grounds of appeal – matters of law - what amounted to matters of law.
Statutes – interpretation of statutes – interpretation of tax statutes - what was the proper way of interpreting a tax statute.
Brief facts
The appellant entered into a construction contract with Kenya Railways Corporation (Kenya Railways) for the construction of the standard gauge railways (SGR) from Mombasa to Nairobi. The appellant asserted that one of the conditions of the contract was that Kenya Railways was required upon request and at a cost to it, to provide reasonable additional assistance in matters of security. It contended that its sole responsibility was to construct the SGR and that security services were not part of its contractual obligation.
The management and administration of the police officers providing security services to the SGR was fully carried out by the National Police Service (NPS) through the Kenya Railways Police Unit. The appellant’ s role was limited to the payment of the allowances of assigned officers as determined by the NPS while their salaries were paid by and received from the NPS.
The respondent (Commissioner) issued the appellant with an investigation finding for the years 2014 to 2016 wherein it claimed that the allowances paid to the police officers amounted to salaries and that the appellant ought to have remitted pay as you earn tax (PAYE) on the same. The appellant objected to the Commissioner’s decision. The Commissioner rejected the objection and aggrieved by that decision, the appellant appealed to the Tax Appeals Tribunal (Tribunal) which upheld the Commissioner’s decision and found the demand for taxes proper. Aggrieved, the appellant filed the instant appeal.
Issues
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Whether PAYE was payable by a person paying for services rendered in the absence of an employer-employee relationship.
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What amounted to matters of law capable of being appealed against from the Tax Appeal Tribunal to the High Court?
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What was the proper way of interpreting a tax statute?
Relevant provisions of the law
Income Tax Act
Section 37
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An employer paying emoluments to an employee shall deduct therefrom, and account for tax thereon, to such extent and in such manner as may be prescribed.
Held
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The interpretation or construction of the Constitution, statute or regulations made thereunder or their application to the sets of facts established by the trial court amounted to matters of law. As far as facts were concerned, the instant court’s engagement with them was limited to background and context and to satisfy itself, when the issue was raised, whether the conclusions of the trial court were based on the evidence on record or whether they were so perverse that no reasonable tribunal would have arrived at them. The court could not be drawn into considerations of the credibility of witnesses or which witnesses were more believable than others; by law that was the province of the trial court.
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The allowances paid to the police officers amounted to income under section 3(1) and (2) and section 5(2) of the Income Tax Act upon which income tax was chargeable. Under section 3(2)(a)(ii), the allowances amounted to a gain from, an employment or services rendered and under section 5(2)(a) it was an amount, received in respect of employment or services rendered.
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In a taxing Act, one had to look at what was clearly said. There was no room for intendment as to a tax. Nothing was to be read in, nothing was to be implied. One could only look fairly at the language used. If a person sought to be taxed came within the letter of the law he had to be taxed, however great the hardship could appear to the judicial mind to be. On the other hand, if the State, seeking to recover the tax, could not bring the subject within the letter of the law, the subject was free, however apparently within the spirit of the law the case could otherwise appear to be.
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The basis of PAYE was section 37(1) of the Income Tax Act. The clear language of that provision referred to, an employer paying emoluments to an employee. It would therefore be improper to imply or read into section 37(1) any other relationship other than an employer or employee. To do so violated the clear words of the statute. It also violated the principles of interpretation of tax statutes.
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The Tribunal fell into error by holding that section 37 of the Income Tax Act applied to a situation where, absent an employer-employee relationship, the person paying for services rendered was subject to PAYE. Further, it also erred by holding that, it would be prejudicial to the taxing authority to limit the ambit of section 37(1) to scenarios where only an employer-employee relationship existed. In so doing, the Tribunal expanded the scope of statutory provisions beyond the words of the statute.
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Section 37 of the Income Tax Act bespoke an employer-employee relationship. Since the appellant was not an employer, it was not under a statutory obligation to deduct and remit any tax in accordance with section 37(1).
Appeal allowed; the decision of the Tribunal was set aside together with the respondent’s objection decisions dated September 19, 2017; the respondent to bear the costs of the appeal.
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Organic For Orphans International & 3 Others V Boaz Oduor Ogollah & 2 Others [2021] EKLR
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Case Number: Civil Case E828 of 2020 |
Date Delivered: 05 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Law Courts)
Parties: Organic for Orphans International, Dale Patrick Bolton, Linda Bolton & Organic for Orphans v Boaz Oduor Ogollah & Douglas Kinaibei Kraido Majune t/a Kraido & Co. Advocates
Advocates:
Citation: Organic for Orphans International & 3 others v Boaz Oduor Ogollah & 2 others [2021] eKLR
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Silas Misoi Yego T/a Siro Investments V Transnational Bank Limited & Another [2021] EKLR
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Case Number: Civil Case E101 of 2020 |
Date Delivered: 01 Feb 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: Silas Misoi Yego t/a Siro Investments v Transnational Bank Limited & Lydiah N. Waweru t/a Purple Royal Auctioneers
Advocates:
Citation: Silas Misoi Yego t/a Siro Investments v Transnational Bank Limited & another [2021] eKLR
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Kenya Pipeline Company Limited V ALS Limited [2021] EKLR
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Case Number: Civil Case 116 of 2015 |
Date Delivered: 29 Jan 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: Kenya Pipeline Company Limited v ALS Limited
Advocates:
Citation: Kenya Pipeline Company Limited v ALS Limited [2021] eKLR
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Moss Enterprises Limited V Norern Auctioneers & Another [2021] EKLR
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Case Number: Civil Case E090 of 2020 |
Date Delivered: 29 Jan 2021 |
Judge: David Shikomera Majanja
Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Parties: Moss Enterprises Limited v Norern Auctioneers & Equity Bank (K) Limited
Advocates:
Citation: Moss Enterprises Limited v Norern Auctioneers & another [2021] eKLR
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