Former LSK president Nelson Havi has lost first round in his court battle against taxman over a Sh17 million tax dispute since last August.
Havi protested that the Kenya Revenue Authority had issued a tax demand on August 28, 2023 consisting of income tax of Sh1,050,960.88 for the period of January 2015 to December 2020, and Value Added Tax of Sh16,031007.75 for the period April 2016 to July 2023.
He told KRA that he had no unpaid tax, insisting he was compliant. But unbowed, KRA froze his bank accounts at NCBA Bank Kenya.
Havi then went to court, applying in the High Court for leave to institute a judicial review to stop the taxman and compel it to delete any arrears against his name and allow him access to his accounts.
But he has now lost the first round as judge Jairus Ngaah has thrown out his application, saying he jumped the gun in the legal fight.
He ought to have approached the Tax Appeal Tribunal to appeal the KRA demand and decision and then if the tribunal decides against him, he would be heard at the High Court.
If still dissatisfied with the decision of the Tax Appeals Tribunal, the judge said, Havi would be entitled to move to High Court by way of an appeal under section 32 of the Tax Appeals Tribunal Act to impeach that decision.
“This provision of the law is explicit and leaves no doubt that it is an appeal rather than an application for judicial review that ought to be filed against decisions of the Tax Appeal Tribunal.”
“... in the instant application, no decision has been made by the Tax Appeals Tribunal against which the applicant can appeal. However, the only route prescribed by the Act by which an applicant aggrieved by a tax decision is through an appeal and not judicial review.”
It said that even if Havi was to persuade the court that there are exceptional circumstances compelling him to move to court before exhaustion of the remedies under the Tax Appeals Tribunal Act, and that it is in the interest of justice that he be so exempted, the procedure which he seeks to invoke to address his grievances is not available to him.
“In other words, exempting the applicant under section 9(4) of the Fair Administrative Action Act would be an exercise in futility since it would be contrary to law to grant the applicant leave to seek judicial review reliefs yet he is restricted to approaching this Honourable Court by way of an appeal.”
The ruling denying Havi the leave for judicial review was delivered on March 25.
