TIMOTHY NJOYA & 17 OTHERS V ATTORNEY GENERAL & 4 OTHERS [2013] KEHC 6000 (KLR)

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TIMOTHY NJOYA & 17 OTHERS V ATTORNEY GENERAL & 4 OTHERS [2013] KEHC 6000 (KLR)

Citation: TIMOTHY NJOYA & 17 OTHERS V ATTORNEY GENERAL & 4 OTHERS [2013] KEHC 6000 (KLR)
Media Neutral Citation: [2013] KEHC 6000 (KLR)
Court: High Court
Court station: High Court at Nairobi (Milimani Law Courts)
Case number: Petition 137 of 2011
Judgment date: 17 January 2013
Language: English
Type: Judgment

REV. DR. TIMOTHY NJOYA & 17 OTHERS.................................................................................................PETITIONERS

VERSUS

THE HON. ATTORNEY GENERAL.........................................................................................................1^ST RESPONDENT

THE CLERK OF THE NATIONAL ASSEMBLY.....................................................................................2^ND RESPONDENT

THE MINISTER FOR FINANCE..............................................................................................................3^RD RESPONDENT

HON. KENNETH MARENDE SPEAKER OF THE NATIONAL ASSEMBLY.........................................4^TH RESPONDENT

HEAD OF THE PUBLIC SERVICE & SECRETARY TO THE CABINET FRANCIS MUTHAURA.......5^TH RESPONDENT

MEMBER	CONSTITUENCY	PARTY
SALLY JEMNGETICH KOSGEI	ALDAI	ODM	6^TH RESPONDENT
EDWIN OCHIENG YINDA	ALEGO/USONGA	ODM	7^TH RESPONDENT
OJAAMONGSON SOSPETER O.	AMAGORO	ODM	8^TH RESPONDENT
BENEDICT FONDO GUNDA	BAHARI	ODM	9^TH RESPONDENT
SAMMY S. KOMEN MWAITA	BARINGO CENTRAL	ODM	10^TH RESPONDENT
ASMAN A. KAMAMA	BARINGO EAST	PNU	11^TH RESPONDENT
WILLIAM C. KIPKORIR	BARINGO NORTH	ODM	12^TH RESPONDENT
CHARLES CHERUIYOT KETER	BELGUT	ODM	13^TH RESPONDENT
CHRISTOPHER MOGERE OBURE	BOBASI	ODM	14^TH RESPONDENT
JOEL ONYANCHA OMAGWA	BOMACHOGE	FORD – P	15^TH RESPONDENT
BEATRICE KONES	BOMET	ODM	16^TH RESPONDENT
CHARLES ONYANCHA	BONCHARI	ODM	17^TH RESPONDENT
OBURU OGINGA	BONDO	ODM	18^TH RESPONDENT
ABABU NAMWAMBA	BUDALANGI	ODM	19TH RESPONDENT
BIFWOLI WAKOLI SILVESTER	BUMULA	PNU	20^TH RESPONDENT
ABDI NASIR NUH	BURA	ODM-K	21^ST RESPONDENT
FRANKLINE BETT	BURET	ODM	22^ND RESPONDENT
WYCLIFFE OPARANYA A.	BUTERE	ODM	23^RD RESPONDENT
ALFRED BWIRE ODHIAMBO	BUTULA	ODM	24^TH RESPONDENT
GITOBU IMANYARA	CENTRAL IMENTI	CCU	25^TH RESPONDENT
KAJEMBE RAMATHAN SEIF	CHANGAMWE	ODM	26^TH RESPONDENT
ISAAC KIPRONO RUTO	CHEPALUNGU	ODM	27^TH RESPONDENT
JOSHUA SEREM KUTUNY	CHERANGANY	ODM	28^TH RESPONDENT
BETH WAMBUI MUGO	DAGORETTI	PNU	29^TH RESPONDENT
ADEN DUALE BARE	DUJIS	ODM	30^TH RESPONDENT
MOSES K. LESSONET	ELDAMA RAVENI	ODM	31^ST RESPONDENT
MARGARET JEPKOECH KAMAR	ELDORET EAST	ODM	32^ND RESPONDENT
RUTO, SAMOEI WILLIAM K.	ELDORET NORTH	ODM	33^RD RESPONDENT
PERIS CHEPCHUMBA	ELDORET SOUTH	ODM	34^TH RESPONDENT
RACHEL SHEBESH	NOMINATED MP	ODM	35^TH RESPONDENT
ELIJAH KIPTARBEI LAGAT	EMGWEN	ODM	36^TH RESPONDENT
WILBERFORCE OTICHILO	EMUHAYA	ODM	37^TH RESPONDENT
SUGOW AHMED ADEN	FAFI	KANU	38^TH RESPONDENT
PAUL OTUOMA NYONGESA	FUNYULA	ODM	39^TH RESPONDENT
BENJAMIN LAGAT	AINAMOI	ODM	40^TH RESPONDENT
DHADHO GADDAE GODHANA	GALOLE	ODM	41^ST RESPONDENT
FRANCIS K. BAYA	GANZE	KADU-A	42^ND RESPONDENT
MUNGATANA DANSON BUYA	GARSEN	NARC -K	43^RD RESPONDENT
CLEMENT KUNGU WAIBARA	GATUNDU NORTH	PICK	45^TH RESPONDENT
KENYATTA UHURU	GATUNDU SOUTH	KANU	46^TH RESPONDENT
JAKOYO MIDIWO	GEM	ODM	47^TH RESPONDENT
MARTHA KARUA WANGARI	GICHUGU	ODM	48^TH RESPONDENT
PETER NJOROGE BAIYA	GITHUNGURI	PNU	49^TH RESPONDENT
JOHN MBADI	GWASI	ODM	50^TH RESPONDENT
KHANIRI GEORGE MUNYASA	HAMISI	ODM	51^ST RESPONDENT
NTOITHIA M\\\'MITHIARU	IGEMBE NORTH	PNU	52^ND RESPONDENT
FRANKLIN MITHIKA LINTURI	IGEMBE NORTH	PNU	53^RD RESPONDENT
HAJI YUSUF MOHAMED	IJARA	KANU	54^TH RESPONDENT
BONI KHALWALE	IKOLOMANI	NEW F. K.	55^TH RESPONDENT
KUTI MOHAMED ABDI	ISIOLO NORTH	NARC-K	56^TH RESPONDENT
ABDUL BAHARI	ISIOLO SOUTH	KANU	57^TH RESPONDENT
WILLIAM KABOGO	JUJA	NARC-K	58^TH RESPONDENT
POGHISIO SAMUEL LOSURON	KACHELIBA	ODM-K	59^TH RESPONDENT
GIDEON NDAMBUKI M.	KAITI	ODM-K	60^TH RESPONDENT
NKAISERRY JOSEPH K.	KAJIADO CENTRAL	ODM	61^ST RESPONDENT
SAITOTI GEORGE	KAJIADO NORTH	PNU	62^ND RESPONDENT
METITO KATOO	KAJIADO SOUTH		63^RD RESPONDENT
SAMUEL KAZUNGU KAMBI	KALOLENI	PNU	64^TH RESPONDENT
JAMES MAINA KAMAU	KANDARA	PNU	65^TH RESPONDENT
ALFRED KHANG\\\'ATI	KANDUYI	ODM	66^TH RESPONDENT
MICHUKI JOHN NJOROGE	KANGEMA	PNU	67^TH RESPONDENT
JOHNSON NDUYA MUTHAMA	KANGUNDO	ODM-K	68^TH RESPONDENT
JULIUS RECHA MURGOR	KAPENGURIA	ODM	69^TH RESPONDENT
JAMES G. KWANYA REGE	KARACHUONYO	ODM	70^TH RESPONDENT
ELIZABETH ONGORO	KASARANI	ODM	71^ST RESPONDENT
JOSEPH OYUGI MAGWANGA	KASIPUL-KABONDO	ODM	72^ND RESPONDENT
WAVINYA NDETI	KATHIANI	CCU	73^RD RESPONDENT
LUCAS C. KIPKOSGEI	KEIYO NORTH	ODM	74^TH RESPONDENT
JACKSON KIPLAGAT KIPTANUI	KEIYO SOUTH	ODM	75^TH RESPONDENT
EVANS BULIMO AKULA	KHWISERO	ODM	76^TH RESPONDENT
STANLEY MUNGA GITHUNGURI	KIAMBAA	KANU	77^TH RESPONDENT
PHILLIP KYALO KALOKI	KIBWEZI	ODM-K	78^TH RESPONDENT
NEMESYUS WARUGONGO	KIENI	PNU	79^TH RESPONDENT
MWANGI ONESMUS	KIBUMO	PNU	80^TH RESPONDENT
JAMLECK IRUNGU KAMAU	KIHARU	S. K. SISI	81^ST RESPONDENT
LEWIS NGUYAI NGANGA	KIKUYU	PNU	82^ND RESPONDENT
GIDEON KONCHELLA	KILGORIS		882^ND \\\'A\\\' RESPONDENT
JOHN HARUN MWAU	KILOME	PICK	83^RD RESPONDENT
DAVID ESELI SIMIYU	KIMILILI	FORD-K	84^TH RESPONDENT
RAI SAMUEL GONZI	KINANGO	FORD-P	85^TH RESPONDENT
DAVID MWANIKI NGUGI	KIPKELION	S. K. SISI	86^TH RESPONDENT
KIMUNYA AMOS MUHINGA	KIPIPIRI	PNU	87^TH RESPONDENT
KIPRONO LANGAT J MAGERER	KIPKELION	ODM	88^TH RESPONDENT
JOHN NGATA KARIUKI	KIRINYAGA CENTRAL	F-ASILI	89^TH RESPONDENT
HASSAN ALI JOHO	KISAUNI	ODM	90^TH RESPONDENT
NYONG\\\'O PETER ANYANG\\\'	KISUMU RURAL	ODM	91^ST RESPONDENT
SHABBIR A. SHAKEEL AHMED	KISUMU TOWN EAST	ODM	92^ND RESPONDENT
JOHN ALUOCH OLAGO	KISUMU TOWN WEST	ODM	93^RD RESPONDENT
NGILU CHARITY KALUKI	KITUI CENTRAL	NARC	94^TH RESPONDENT
ISAAC MULATYA MUOKI	KITUI SOUTH	ODM-K	95^TH RESPONDENT
CHARLES MUTISYA NYAMAI	KITUI WEST	NARC	96^TH RESPONDENT
RICHARD M. ONYONKA	KITUTU CHACHE	PDP	97^TH RESPONDENT
WALTER E. NYAMBATI OSEBE	KIKTUTU MASABA	N.P	98^TH RESPONDENT
JULIUS KIPYEGON KONES	KONOIN	ODM	99^TH RESPONDENT
ZAKAYO K. CHERUIYOT	KURESOI
TWAHA YASIN FAHIM	LAMU EAST	PNU	107^TH RESPONDENT
MOHAMED ABU CHIABA	LAMU WEST	NARC-K	108^TH RESPONDENT
DAVID N. KIBURI MWAURA	LARI	PPK	109^TH RESPONDENT
MWALIMU M. MWAHIMA	LIKONI	ODM	110^TH RESPONDENT
PETER MUNGAI MWATHI	LIMURU	FORD P	111^TH RESPONDENT
JUDAH KATOO METITO	LOITOKITOK	NARC-K	112^TH RESPONDENT
JIRONGO CYRUS	LUGARI	KADDU	113^TH RESPONDENT
ATANAS MANYALA KENYA	LURAMBI	ODM	114^TH RESPONDENT
VICTOR KIOKO MUNYAKA	MACHAKOS TOWN	ODM-K	115^TH RESPONDENT
AMASON KINGI JEFFA	MAGARINI	ODM	116^TH RESPONDENT
PETER L. N. KIILU	MAKUENI	ODM-K	118^TH RESPONDENT
SHITANDA PETER SOITA	MALAVA	N. F. KEN	119^TH RESPONDENT
MAITHA GIDEON MUNGARO	MALINDI	ODM	120^TH RESPONDENT
H. MOHAMED ABDIKADIR	MANDERA CENTRAL	SAFINA	121^ST RESPONDENT
MOHAMED HUSSEIN ALI	MANDERA EAST	ODM	122^ND RESPONDENT
MOHAMED A. H. M.	MANDERA WEST	ODM	123TH RESPONDENT
EMILIO MUREITHI KATHURI	MANYATTA	DP	124TH RESPONDENT
MBAU, ELIAS PETER	MARAGWA	PNU	125TH RESPONDENT
KILIMO, LINAH JEBII	MARAKWET EAST	KENDA	126TH RESPONDENT
BOAZ KIPCHUMBA KAINO	MARAKWET EAST	ODM	127TH RESPONDENT
MBAI BENSON ITWIKU	MASINGA	ODM-K	128TH RESPLENDENT
CLEMENT MUCHIRI W.	MATHIOYA	PNU	129TH RESPONDENT
EPHRAIM MWANGI MAINA	MATHIRA	SAFINA	130TH RESPONDENT
MWAKWERE, CHIRAU ALI	MATUGA	PNU	131TH RESPONDENT
WERE, DAVID AOKO	MATUNGU	ODM	132TH RESPONDENT
KAJWANG\\\', GERALD OTIENO	MBITA	ODM	133TH RESPONDENT
MUTULA KILONZO	MBOONI	ODM-K	134TH RESPONDENT
JOHN PESA DACHE	MIGORI	ODM	135TH RESPONDENT
HELLEN JEPKEMBOI SAMBILI	MOGOTIO	UDM	136TH RESPONDENT
JOSEPH NGANGA KIUNA	MOLO	PNU	137TH RESPONDENT
DAVID K. KOECH	MOSOP	ODM	138TH RESPONDENT
MOHAMUD MOHAMED ALI	MOYALE	ODM	139TH RESPONDENT
OMAR MBWANA ZONGA	MSAMBWENI	ODM	140TH RESPONDENT
FRED CHESEBE KALPONDI	MT. ELGON	ODM	141TH RESPONDENT
OLWENY, PATRICK AYIECHO	MUHORONI	ODM	142TH RESPONDENT
KABANDO WA KABANDO	MUKURWEINI	SAFINA	143TH RESPONDENT
BENJAMIN JOMO WASHIALI	MUMIAS	ODM	144TH RESPONDENT
HON. MILLIE O. MABONA	NOMINATED MP	ODM	145TH RESPONDENT
BALALA MOHAMED NAJIB	MVITA	ODM	146TH RESPONDENT
DANIEL MUTUA MUOKI	MWALA	ODM-K	147TH RESPONDENT
ANDREW CALIST MWATELA	MWATATE	ODM	148TH RESPONDENT
PETER NJUGUNA GITAU	MWEA	PNU	149TH RESPONDENT
JOSEPH NYAGA	NOMINATED MP	ODM	150TH RESPONDENT
MUSILA DAVID	MWINGI SOUTH	ODM-K	150TH RESPONDENT
JOHN MUTUTHO	NAIVASHA	KANU	151TH RESPONDENT
LEE MAIYANI KINYANJUI	NAKURU TOWN	PNU	152TH RESPONDENT
OKEMO CHRYSANTHUS	NAMBALE	ODM	153TH RESPONDENT
NTIMAMA, WILLIAM R. OLE	NAROK NORTH	ODM	154TH RESPONDENT
NKOIDILA OLE LANKAS	NAROK SOUTH	ODM	155TH RESPONDENT
JEREMIAH KNGAYU KIONI	NDARAGWA	LPNU	156TH RESPONDENT
JOSHUA ORWA OJODE	NDHIWA	ODM	157TH RESPONDENT
GITHAE ROBINSON NJERU	NDIA	PNU	158TH RESPONDENT
JAPHET M. KAREKE MBIUKI	NITHI	KANU	159TH RESPONDENT
FRANCIS CHACHU GANYA	NORTH HORR	ODM	160TH RESPONDENT
SILAS MURIUKI RUTEERE	NORTH IMENTI	MAZ. RA	161ST RESPONDENT
WILFRED MORIASI OMBUI	NORTH MUGIRANGO B.	KANU	162ND RESPONDENT
POLLYINS OCHIENG ANYANGO	NYAKACH	ODM	163RD RESPONDENT
FREDRICK OTIENO OUTA	NYANDO	ODM	164TH RESPONDENT
ROBERT ONSARE MONDA	NYARIBARI CHACHE	NARC	165TH RESPONDENT
SAMSON KEGENGO ONGERI	NYARIBABI MASABA	KANU	166TH RESPONDENT
PETER E. OMONDI ANYANGA	NYATIKE	ODM	167TH RESPONDENT
ESTHER MURUGI MATHENGE	NYERI TOWN	PNU	168TH RESPONDENT
AMINA ABDALLA	NOMINATED	PNU	16TH RESPONDENT
MARTIN OTIENO OGINDO	RANGWE	ODM	170TH RESPONDENT
NICHOLAS O. GUMBO	RARIEDA	ODM	171TH RESPONDENT
LUKA KIPKORIR KIGEN	RONGAI	ODM	172^ND RESPONDENT
DALMAS ANYANGO OTIENO	RONGO	ODM	173^RD RESPONDENT
CECILY MUTITU MBARIRE	RUNYENJES	PNU	174^TH RESPONDENT
WYCLIFFE M. MUDAVADI	SABATIA	ODM	175^TH RESPONDENT
EUGENE LUDOVIC WAMALWA	SABOTI	PNU	176^TH RESPONDENT
HUSSEIN TARRY SASURA	SAKU	ODM-K	177^TH RESPONDENT
RAPHAEL LAKALEI LETIMALO	SAMBURU EAST	ODM	178^TH RESPONDENT
LESIRMA SIMEON SAIMANGA	SAMBURU WEST	ODM	179^TH RESPONDENT
JUSTUS MUGALI KIZITO	SHINYALU	ODM	180^TH RESPONDENT
LENNY MAXWELL KIVUTI	SIAKAGO	SAFINA	181^ST RESPONDENT
WILSON MWOTINY LITOLE	SIGOR	ODM	182^ND RESPONDENT
WETANGULA MOSES MASKISA	SIRISIA	PNU	183^RD RESPONDENT
LORNA CHEPKEMOI LABOSO	SOTIK	ODM	184^TH RESPONDENT
DR. JOYCE LABOSO	SOTIK	ODM	184^TH RESPONDENT
MURUNGI KIRAITU	SOUTH IMENTI	PNU	185^TH RESPONDENT
SAM NYAMWEYA	SOUTH MUGIRANGO	ODM	186^TH RESPONDENT
NELSON RIBUTHI GAICHUHIE	SUBUKIA	ONU	187^TH RESPONDENT
SHABAN NAOMI NAMSI	TAVETA	KANU	188^TH RESPONDENT
FRANCIS THOMEBE NYAMMO	TETU	PNU	189^TH RESPONDENT
ALEX M. MBURI MWIRU	THARAKA	ONU	190^TH RESPONDENT
MUNYA PETER GITIRAU	TIGANIA EAST	PNU	191^ST RESPONDENT
MWIRIA VALEERIAN KILEMI	TIGANIA WEST	PNU	192^ND RESPONDENT
KOSGEY HENRY KIPRONO	TINDERET	ODM	193^RD RESPONDENT
ETHURO DAVID ETHURO	TURKANA CENTRAL	PNU	194^TH RESPONDENT
MUNYES JOHN KIYONGA	TURKANA NORTH	ONU	195^TH RESPONDENT
JOSEPHAT NANOK KOLI	TURKANA SOUTH	ODM	196^TH RESPONDENT
AGGREY JAMES ORENGO	UGENYA	ODM	197^TH RESPONDENT
CYPRIAN OJWANG OMOLLO	URIRI	ODM	198^TH RESPONDENT
YUSUFU KIFUMA CHANZU	VIHIGA	ODM	199^TH RESPONDENT
DANSON O. MWAKULEGWA	VOI	ODM	200^TH RESPONDENT
IBRAHIM ELMI MOHAMED	WAJIR EAST	ODM	201^ST RESPONDENT
HUSSEIN GABO MOHAMMED	WAJIR NORTH	ODM	202^ND RESPONDENT
ABDIRAHMAN H. ALI	WAJIR SOUTH	KANU	203^RD RESPONDENT
ADAN KEYNAN WELIHYE	WAJIR WEST	KANU	204^TH RESPONDENT
WEKESA B. A. SAMBU	WEBUYE	ODM	205^TH RESPONDENT
JAMES ONDICHO GESAMI	WEST MUGIRANGO	ODM	206^TH RESPONDENT
GUMO FREDRICK OMULO	WESTLANDS	ODM	207^TH RESPONDENT
THOMAS L. MWADEGHU	WUNDANYI	ODM	208^TH RESPONDENT
KILONZO CHARLES MUTAVI	YATTA	ODM-K	209^TH RESPONDENT
SOHIA ABIDI NUR	NOMINATED	ODM	210^TH RESPONDENT
GEORGE NYAMWEYA	NOMINATED	PNU	211^TH RESPONDENT
SHEIKH DOR	NOMINATED	ODM	212^TH RESPONDENT
MOHAMMED AFFEY	NOMINATED	PNU	213^TH RESPONDENT
MUSA SIRMA	NOMINATED	ODM	214^TH RESPONDENT
AMINA ABDALLA	NOMINATED	KANU	215^TH RESPONDENT
MUSIKARI KOMBO	NOMINATED	ODM	216^TH RESPONDENT
SHAKILA ABDALLA	NOMINATED	ODM-K	217^TH RESPONDENT
MASON LESHOMA	NOMINATED	PNU	218^TH RESPONDENT

COMMISSION ON THE IMPLEMENTATION

OF THE CONSTITUTION(CIC)…………………………1^ST INTERESTED PARTY

KENYA REVENUE AUTHORITY………………………2^ND INTERESTED PARTY

JUDGMENT

The amended petition dated 12^th September 2011 seeks the following prayers:

a) A declaration that under the Constitution all State Officers, including Members of Parliament are under an obligation to pay tax as per Article 210 as read with Article 201 and 230 of the Constitution and that the Head of the Civil Service and Secretary to the Cabinet or the Hon. Attorney General, the 1^st Respondent herein or the President and the Prime Minister have no powers or authority to exempt any state officer from the payment of tax;

b) A declaration that neither the current Constitution nor the transitional clauses saves or exempts the members of Parliament from payment of Tax and that it is illegal and unconstitutional for the Government to settle the tax burden of the members of Parliament using public resources or monies drawn from the Consolidated Fund or from any other monies or and that it would be unconstitutional to divert or re-allocate funds derived from tax-payer’s money to settle the tax obligations of the Respondent members of Parliament or any other state Officers;

c) A declaration under the new Constitution only the salaries and Remuneration Commission can review the salaries of ‘state officers’ and that it would be illegal and unconstitutional for Members of Parliament to review their salaries to offset the demand to pay tax;

d) A declaration that it would be illegal and unconstitutional for the Members of Parliament to sabotage or frustrate the process of debate or passage of bills necessary for the full implementation of the Constitution or passage of the National Budget or any motion or legislation of the government on account of the demand by the Kenya Revenue Authority to pay taxes.

e) An order of injunction permanently restraining the 1^st, 2^nd and 5^th Respondents from implementing or enforcing the directive by the Head of Civil Service and Secretary to the Cabinet to Permanent Secretaries that all taxes of Members of Parliament demanded by the Kenya Revenue Authority, the 2^nd Interested Party herein, be settled by the Government, and directing that all the deductions made upon their salaries be refunded by the respective Permanent Secretaries, further restraining the 3^rd Respondent, the Minister of Finance herein, effecting or implementing the said directive to settle tax obligations of the Members of Parliament from the Consolidated Fund or any of the tax payers monies held or maintained by the Government for and on behalf of the people of Kenya;

f) An order compelling the Clerk of the National Assembly the 2^nd Respondent herein and or the employer of the 6hth to 209^th Respondent to deduct and remit at source the salaries of the Respondents including arrears and to remit the same regularly to the 2^nd Interested Party as required by law.

On 27^th August 2010, a new Constitution was promulgated. During the period of transition from the old order to the new order, transitional clauses were put in place to enable the country have a smooth transition.

According to the Petitioners, on or about the 17^th of August 2011, the Head of the Public Service and Secretary to the Cabinet, the 5^th Respondent herein, issued a directive vide a circular to the Permanent Secretaries of all ministries in the government to refund all taxes or deductions made on the salaries and payslips of all Cabinet Ministers and Assistant Ministers. The said circular further directed that all the taxes demanded from the Respondents by the Kenya Revenue Authority from September 2010 to June 2011, as well as any further taxes demanded in the period until December 2012, be settled by the Government.

The Petitioners further contend that Members of Parliament have entered into an agreement with, or that a representation was made by, the 1^st Respondent, and assurances issued by the Minister for Finance (the 3^rd Respondent herein) the President and Prime Minister to the effect that the provision of Article 210 would not apply to the current life of the National Assembly.

The Petitioners case is therefore that:

a) That the Constitution of Kenya 2010 provides for a situation where all citizens working in the country pay taxes on all their income;

b) That Chapter 12 of the Constitution of Kenya, 2010 came into force immediately after the promulgation of the Constitution and is not suspended by the transitional and consequential provisions contained in the Sixth Schedule. The provisions that impose taxation on everybody have not been suspended by the Sixth Schedule and that they were to apply immediately after the promulgation of the Constitution. These provisions are Articles 201, 210, (1) (2) (a) and (b) as read with Article 230 (4) of the Constitution.

c) That under section 10 of the Sixth Schedule of the Constitution, the life of the National Assembly is saved, but the members are not excluded or shielded from the payment of taxes that are imposed under Articles 209 and 210 of the Constitution.

The Payment of taxes is therefore a constitutional obligation, and by virtue of Article 2 of the Constitution of the Republic, is binding on all persons including the executive and members of parliament.

The Respondents on the other hand take the position that due to the Transitional and Consequential provisions contained in the Sixth Schedule to the Constitution, and in particular sections 6, 7 and 32, the Members of the National Assembly are exempted from paying taxes on their allowances.

The repealed Constitution had no provisions regarding taxation. Remuneration of Members of Parliament was governed by the National Assembly Remuneration Act, 2005. Under this Act, allowances paid to members of the National Assembly were exempt from income tax.

The Constitution of Kenya, 2010 dedicates an entire chapter to public finances. The principles of public finance are outlined in Article 201 of the Constitution of Kenya. These principles are:

201. The following principles shall guide all aspects of public finance in the Republic —

(a) there shall be openness and accountability, including public participation in financial matters;

(b) the public finance system shall promote an equitable society, and in particular —

(i) the burden of taxation shall be shared fairly;

(ii) revenue raised nationally shall be shared equitably among national and county governments; and

(iii) expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas;

(c) the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;

(d) public money shall be used in a prudent and responsible way; and

(e) financial management shall be responsible, and fiscal reporting shall be clear.

Article 210 of the Constitution of Kenya lays down the basis for the imposition of tax. It provides that:

210. (1) No tax or licensing fee may be imposed, waived or varied except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee —

(a) a public record of each waiver shall be maintained together with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to the Auditor-General.

(3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of —

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

A state officer is defined under Article 260 of the Constitution of Kenya as any person who holds a state office. A state officer includes the President, the Deputy President, a Cabinet Secretary and a Member of Parliament.

Under the new Constitution, the increase in salaries of any state officer is subject to, and under the jurisdiction and control of the Salaries and Remuneration Commission established under Article 230 of the Constitution. At the time of filing this petition, the Salaries and Remuneration Commission had not yet been established.

The Petitioners’ case is that Chapter 12 of the Constitution of Kenya, 2010 came into force immediately after the promulgation of the Constitution and is not suspended by the transitional and consequential provisions contained in the Sixth Schedule. The Petitioners state that the provisions that impose taxation on everybody have not been suspended by the Sixth Schedule and that they were to apply immediately after the promulgation of the Constitution. These provisions are Articles 201, 210, (1) (2) (a) and (b) as read with Article 230 (4) of the Constitution. It is the Petitioners’ case that under section 10 of the Sixth Schedule of the Constitution, the life of the National Assembly is saved, but the members are not excluded or shielded from the payment of taxes that are imposed under Articles 209 and 210 of the Constitution.

Payment of taxes is therefore a constitutional obligation, and by virtue of Article 2 of the Constitution of the Republic, is binding on all persons including the executive and members of parliament.

The Petitioners state that it is now common knowledge that members of the National Assembly have declined to comply with a demand by the Kenya Revenue Authority to pay taxes. They claim that the refusal to pay taxes amounts to a violation of their rights under the Constitution but is also in breach of Articles 201, 210 and 230 of the Constitution.

The Petitioners also claim that any decision or intended deals put in place to exempt, excuse or vary the obligation of Members of the National Assembly to pay tax, or to increase their salaries to help them offset their tax obligations would be discriminatory and unconstitutional and contrary to Article 27 of the Constitution.

The Petitioners further state that that any agreement, representations, promissory notes and assurances made to exempt the 6^th – 218^th Respondents from any payment of tax would not constitute any law, and even if they did, Article 210 (3) clearly prohibits the making of any law that would exclude or authorise the exclusion of any State Officer from payment of tax. The Petitioners take the position that the Members of the National Assembly not only have a duty but an obligation to Kenyans and to the Constitution to make good their duty to pay tax.

The Petitioners also take issue with the proposed implementation of the Akiwumi Report on Salary Increment in the National Assembly. They state that implementing the report and increasing the salaries of members of the National Assembly is in express violation in Article 230 of the Constitution which makes the review of salaries of State Officers the exclusive of the Salaries and Remuneration Commission which is yet to be formed.

The Petitioners have asked this court to interpret whether the Respondents, and in particular the Members of the National Assembly are ‘state officers’ as contemplated under Articles 210 of the Constitution and whether in the use of public resources and management of public finance all State Officers are bound by the provisions of Article 201.

They also seek an interpretation as to whether any decision to increase the salaries of the sitting members of parliament prior to the establishment of the Salaries and Remuneration Commission is in breach of Article 230 of the Constitution.

The Petitioners also want this court to make a determination as to whether the substantive provisions of the Constitution or the provisions contained in the transitional and consequential provisions exempts members of Parliament from the payment of tax.

The petition is opposed by the 1^st, 3^rd and 5^th Respondents. They filed grounds of opposition dated 15^th March 2012 which set out their position as follows:

a) The application is misconceived and an abuse of the process of the court, they stated that the alleged directive is not annexed to the Petition and as such, the Petition is founded on speculation and suspicion. They also state that the Petition is incompetent, is devoid of merit, is premature, misplaced and misdirected.

b) The provisions relating to the payment of tax by members of Parliament are clear and there is nothing for constitutional interpretation by the court; that the petition does not disclose any cause of action or any constitutional violation or breaches by the Respondents. They are of the view that this case ought to be dismissed with costs.

The petition is also opposed by way of the Replying Affidavit of Peter Gichohi sworn on 26^th January 2012, the 2^nd Respondent, who swears the affidavit on behalf of the 4^th, 5^th and 6^th – 209^th Respondents in his capacity as the Accounting Officer of the Parliamentary Service Commission and the National Assembly. In this affidavit, the Respondents take issue with the Petitioners’ interpretation of the aforesaid constitutional provisions.

The Respondents case is that the petition as drawn is incompetent, is devoid of merit and is unmaintainable because it is a direct challenge on the validity and legality of the stipulations of the Constitution of Kenya which is prohibited by Article 2 (3) of the Constitution of Kenya. They submit that this court has no jurisdiction to hear this matter or issue the orders sought.

The Respondents state that even under Article 210 of the Constitution, there is no basis for issuing the orders as they would amount to imposing a tax burden that is not provided in law, and this would be a violation of the principle of legality.

The Respondents concede that Members of the National Assembly are state officers within the meaning of Article 260 of the Constitution. They also concede that under the provisions of Articles 210 and 230 of the Constitution of Kenya, all state officers are obligated to pay tax. The Respondents however claim that under the current taxation regime Members of the National Assembly, and its Committees as they are presently constituted, are not required to pay taxes on their allowances until the expiry of the present term of the National Assembly.

The Respondents fault the Petitioners for failing to wholly appreciate the special transitory period that the country is undergoing and the nature of government and institutions that were in place during and immediately preceding the promulgation of the Constitution.

The Respondents case is that they ought not to have their allowances taxed until the expiry of the current term because:

a) By virtue of Article 262 of the Constitution of Kenya, the sixth schedule preserves certain rights of the Members of the National Assembly as presently constituted until the expiry of their term. This is a protection came into effect on the effective date of the Constitution of Kenya 2010.

b) Article 264 of the Constitution preserves the provisions of the former Constitution enacted pursuant which were preserved by the Sixth Schedule and will remain in force until the expiry of the term of the present National Assembly.

c) Section 3 (2) of the Sixth Schedule of the Constitution of Kenya preserves sections 30 to 58 of the former Constitution until the first general elections held under the present Constitution;

d) Section 10 of the said sixth schedule expressly provides that the National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for the unexpired term;

e) Parliament passed the National Assembly Remuneration Act, Chapter 5 of the Laws of Kenya and the National Assembly (Powers and Privileges) Act chapter 6 of the Laws of Kenya before the promulgation of the present Constitution;

f) The National Assembly Remuneration Act was and remains the legislation dedicated to providing for the remuneration and taxation of Members of the National Assembly. This Act details the part of remuneration which is tax exempt. The Respondents state that challenging section 5 of this statute is impossible as long as the same remains in force, there can be no basis for the challenge.

g) The Respondents also take the view that sections 3 (2), 7, and 10 of the Sixth Schedule of the Constitution of Kenya which preserves the National Assembly and its integrity of its term begets a legitimate expectation on the Members of Parliament not to lose the existing rights under the National Assembly Remuneration Act, Chapter 5 of the Laws of Kenya including the right not to have their allowances taxed as well as their existing privileges and immunities until expiry of the term and the legitimate expectation sealed. This creates an actual and vested right to property guaranteed under Article 40 of the Constitution of Kenya which the High Court is enjoined to protect under the Bill of Rights;

h) Compelling Members of the National Assembly to pay additional tax, thereby negating their rights not to be burdened by additional tax upon their allowances is tantamount to altering the integrity and privileges and immunities by taking away a portion of the allowances of the Members of the National Assembly and is tantamount to altering the integrity and privileges of the standing of the National Assembly, and contravenes Articles 262 of the Constitution of Kenya and the sixth schedule sections 3(2) and 10 of the Constitution of Kenya.

In sum, the Respondents are of the view that they do not owe any taxes to the Kenya Revenue Authority in respect of their allowances.

During oral submissions, the petitioners were represented by Mr. Oluoch. He outlined 5 issues that he wanted the court to make determination on:

1. Whether the privileges enjoyed by Members of Parliament under the Salaries and Remuneration Act constitute obligations of the government under with section 6 as read with section 7 of the sixth schedule of the Constitution;

2. Whether the relationship between MPs and the Public Service Commission is an employer-employee relationship if so, do the rights and obligations constitute existing rights or obligations of the government within the meaning of section 6 of the Sixth Schedule?

3. Whether the under the new Constitution, there are any specific provisions that suspends the tax obligations of any class or group of persons within the meaning of section 210 of the Constitution of Kenya.

4. Whether any purported waiver or exemption of taxes to any group of persons would constitute a breach of the Constitution under Article 10, 27, 201 and 210 of the said Constitution;

5. Whether the provisions of section 3 of the 6^th Schedule of the Constitution constitute waiver of taxation to any members of parliament.

Mr Oluoch submitted it was not contemplated that the existing rights and obligations under section 6 of the 6^th Schedule be construed to mean that exemption from taxation is a right. He contends that the Constitution is a living document and it must be interpreted as a whole. He has invited this court to look at the intention of the text of section 6 of the 6^th Schedule in the Constitution.

Counsel also submitted on the principles of equality and equity and non-discrimination of citizens on the issue of non-taxation. He submitted that in the absence of express provisions exempting the members of the National Assembly from taxation, there is no class of persons who are exempt from taxation.

The Petitioners’ position is that Section 3 of the 6^th Schedule does not exempt members of the National Assembly from taxation. The effect of the section does not give rise to a legitimate expectation, and that non-payment of taxes is not a right but a privilege. There is therefore no provision in law that shields members of parliament from payment of taxes.

The 2^nd, 4^th, 6^th – 209^th Respondents were represented by Mr. Ochieng Oduol. Counsel for these parties relied on the submissions dated and filed in court on 20^th March 2012.

The Respondents’ position is that the present petition is misconceived and is only an attempt to reduce the terms and benefits of members of the National Assembly. He submits that there is a statute in place which is valid and binding. He states that this petition does not challenge the validity and constitutionality of that Act, but merely an attempt to declare a provision of the Constitution unconstitutional.

He submits that these are issues have already been canvassed before the High Court in Petition Numbers 65 and 123 of 2011, and 185 of 2011, and that to bring this issue before the High Court once more is an abuse of the Court process since the terms and benefits of members of parliament were settled by a court of competent jurisdiction.

Counsel for the Respondents submitted that where there is a conflict between transitional clauses and the provisions of the Constitution, then the transitional provisions would prevail because they deal with specific provisions.

He states that the term of the current parliament is set to expire on 14^th January 2013 and the salaries and terms of service of the Members must continue until then.

He submits that this court should not have a say on how much tax any individual should pay, because the mandate of the court is limited to interpretation of the Constitution. In recognition of the doctrine of separation of powers the court should only interpret the law. He also correctly submitted that the High Court has no mandate to assess the amount of tax that is payable by anyone.

Counsel also submitted on the right to property under Article 40 of the Constitution. He states that Article 40 prohibits parliament from enacting a law that permits the state to arbitrarily deprive a person of any property or limit or restrict any right or benefit on the basis of any reason thereon. He states that they have a right that is recognised under the transitional provisions and to deprive the Respondents of that right is contrary to the law.

The Respondents’ positions is that this court is obliged to protect the interests of parliament because there is a right or legitimate expectation that arises from the transitional provisions under section 7 (1) of the 6^th Schedule. According to them, the fact that the life of the current parliament is saved also means that the terms and benefits are saved.

The Respondents also state that the perception that the Members of Parliament were excluded from payment of taxes is not right. It is only some of the allowances that are not taxed. They are of the view that Article 210 of the Constitution does not confer any rights - that is a matter of policy which can only be found in legislation.

In response, Mr. Oluoch invited the court to interpret the constitution in a manner that advances the rule of law. He further stated the Constitution must be interpreted as a whole, and not in bits and pieces. He submits that while the transitional and consequential provisions did save the term of the current parliament, the same did not apply to the salaries and remuneration of members of parliament. He submits that there is no conflict between the transitional or constitutional provisions that would necessitate this court to override the substantive provisions of the Constitution.

Mr. Oluoch is of the opinion that if the intention of the transitional and consequential provisions was to exempt Members of the National Assembly from paying taxes, then the drafters of the Constitution would have included that. An integrated and purposive approach to interpreting the Constitution would lead to the conclusion that it was not the intention of the people of Kenya in their sovereign will to exempt taxation for 222 privileged members of the national assembly in the guise of existing obligations and rights.

Counsel further submits that the existing rights and obligations of the Respondents do not include salaries and other benefits. Moreover, the rights of the Respondents must be balanced with those of the other citizens. He submits that every Kenyan is now required to pay taxes.

This Petition is based on the interpretation of the transitional and consequential provisions that are in the Constitution of Kenya, 2010 in relation to taxation.

Transitional provisions are included in legislation in order to facilitate a change from the old regime to a new regime, or from an old law to a new law. Transitional provisions contain special arrangements or structures that will apply, for a limited period of time, as the changes brought about in the new law are being implemented and appreciated.

In the Constitution of Kenya 2010, Article 262 gives effect to the Transitional and Consequential Provisions that are set out in the Sixth Schedule. These provisions are therefore a part of the Constitution.

The place of transitional and consequential provisions has been dealt with before in this court. In Dennis Mogambi Mong’are v Attorney General & 3 others [2011] eKLR (Petition No. 146 of 2011)a three judge bench of this court expressed itself as follows regarding the place of the transitional provisions in the sixth schedule:

54. The transitional provisions contained in the Sixth Schedule are intended to assist in the transition into the new order, but are limited in time and in operation and are to remain in force for the period provided in order to achieve the aspirations of Kenyans in moving into the new order. These transitional provisions are as much a part of the Constitution and as much an expression of the sovereign will of the people as the main body of the Constitution. (emphasis mine)

Mr. Ochieng Oduol for the Respondents is of the view that in the present petition, the transitional and consequential provisions in the Sixth Schedule are in conflict with the substantive constitutional provisions, and that where this happens, thetransitional provisions should prevail.

In Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT27/95) [1995] the South African Constitutional Court had this to say on the place and role of transitional provisions in the Constitution:

(33) It is necessary to consider section 232(4) of the Constitution in context. It is contained in Chapter 15 which is entitled ‘General and Transitional Provisions’ and the section itself, according to the heading, deals with ‘Interpretation’. Section 232(4) is not conclusive on the issue of the exact status of the Constitutional Principles in relation to other provisions in the current Constitution. The section is of general application to all the Schedules to the Constitution. It ensures that they are treated for all purposes as if they formed part of the main body of the Constitution, and makes clear that they do not have a lesser status than provisions located elsewhere in the Constitution. Ordinarily, the position with regard to matter contained in a schedule is as set out by Kotze JA in African and European Investment Co. Ltd. v Warren and Others 1924 AD 308 at 360:

No doubt a schedule or rule attached to a Statute and forming part of it is binding, but in case of clear conflict between either of them and a section in the body of the Statute itself, the former must give way to the latter.

The South African Constitutional Court went further in this case and quoted Craies, Statute Law (7^th Ed. by Edgar, 1971) at 224, as follows:

A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much an enactment, as any other part, but if an enactment in a schedule contradicts an earlier clause the clause prevails against the schedule ... .

Paragraphs 34 and 35 of the decision of the South African Constitutional Court continues:

(34) Section 232(4) therefore ensures that the Schedules to the current Constitution are regarded not merely as an explanatory adjunct subordinated to the clause to which they are attached. Nor are the Schedules texts lacking constitutional status …. Like all provisions of the Constitution they must be interpreted in their context, and if relevant, can be taken into account in interpreting other provisions of the Constitution.

The provisions of Chapter Twelve relating to taxation of all citizens must be interpreted in context. Similarly, the provisions that save the life and term of the Parliament, which provisions are contained in the Sixth Schedule, must be interpreted in context of the principles contained in the Constitution.

The question is what happens when there is a direct and clear conflict between the transitional and consequential provisions, and the substantive provisions of the Constitution?

In John Harun Mwau & 3 others V Attorney General & 2 others [2012] eKLR (Constitutional Petition No. 65 of 2011 Consolidated with Petitions Nos 123 of 2011 and 185 of 2011) a three-judge bench of this court expressed itself as follows regarding a potential conflict:

‘In dealing with the transitional provisions, we are aware of the fact that these provisions are intended to deal with the shift from the old constitutional order to the new one and in the event of conflict between the provisions in the main body and the transitional provisions, the transitional provisions would prevail as they are specific to the situation contemplated.’ (emphasis mine)

With profound respect to the learned judges in that case, I disagree with the proposition that the transitional clauses will prevail over the substantive provisions of the Constitution. I am of the view that the correct position is as stated in the Executive Council of the Western Cape Legislature (supra) case – that the Constitution must be read as an integrated whole, and that where there is a conflict, then the substantive provisions of the Constitution would prevail. The role of the transitional clauses in the Constitution is to ensure a smooth shift from the old to the new order, while the role of the Constitution is to address and correct past injustices, and ensures that the citizens rights are protected in the future.

It is now important to consider whether there exists a conflict between sections 6, 7 and 32 of the Transitional and Consequential provisions in the Sixth Schedule and Chapter Twelve in the Constitution.

Sections 6, 7 and 32 are reproduced hereunder:

6. Except to the extent that this Constitution expressly provides to the contrary, all rights and obligations, however arising, of the Government or the Republic and subsisting immediately before the effective date shall continue as rights and obligations of the national government or the Republic under this Constitution.

7. (1) All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

(2) If, with respect to any particular matter—

(a) a law that was in effect immediately before the effective date assigns responsibility for that matter to a particular State organ or public officer; and

(b) a provision of this Constitution that is in effect assigns responsibility for that matter to a different State organ or public officer, the provisions of this Constitution prevail to the extent of the conflict.

32. The law applicable to pensions in respect of holders of constitutional offices under the former Constitution shall be either the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to the person.

Article 201, which sets out the principles of public finance, provides that the public finance system shall promote an equitable society, and in particular that the burden of taxation shall be shared fairly.

Article 210 of the Constitution provides that:

210. (1) No tax or licensing fee may be imposed, waived or varied except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee—

(a) a public record of each waiver shall be maintained together with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to the Auditor-General.

(3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of—

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

The relevant sections of the Sixth Schedule of the transitional provisions and Chapter Twelve of the Constitution do not reveal any conflict. It is also instructive that the provisions of Chapter Twelve are not suspended under section 2 of the Sixth Schedule.

If there had been a conflict, Article 259 of the Constitution would be of help in resolving it. This Article sets out the manner in which the Constitution should be construed. It must be done in a manner that:

a) promotes its purposes, values and principles;

b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

c) permits the development of the law; and

d) contributes to good governance

Moreover, as the Petitioners’ counsel rightly pointed out, the Constitution must be interpreted as a whole, and not in bits and pieces.

Section 3 (2) of the Sixth Schedule provides that sections 48 to 58 of the former Constitution shall continue to operate until the first general elections held under the current Constitution. Section 57 of the repealed Constitution is the relevant provision. It provided that:

“Without prejudice to the powers conferred by section 56, Parliament may, for the purpose of the orderly and effective discharge of the business of the National Assembly, provide for the powers, privileges and immunities of the Assembly and its committees and members.”

A reading of this section of the repealed Constitution shows that the Members National Assembly had the power to set their terms of service. It is pursuant to this section that Parliament enacted the National Assembly Remuneration Act which provided for their remuneration as well as the exemption of allowances from Income Tax. Section 5 of this Act provides that:

‘All allowances payable under this Act shall be exempt from income tax notwithstanding the provisions of any other written law relating to income tax.’

Section 10 of the Sixth Schedule saved the term of the National Assembly thus:

The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.

The question that arises for determination here is whether the National Assembly as it has been saved under Section 10 of the Sixth Schedule implies that its members would be exempted from paying taxes on their allowances.

Mr. Ochieng’ Oduol is of the view that this determination cannot be made without first making reference to the system of taxation that is currently in place. He made lengthy submissions on the system of taxation.

Tax is a monetary charge which is imposed by the government on persons or entities to yield public revenue. Income tax is a tax on an individual’s income. The purpose of taxation is for the government to raise revenue that is used for development and to finance public sector activities.

Under the Income Tax Act, income tax is charged on the aggregate amount of income that is both the basic salary as well as the allowances given. In the Constitution, at Article 201, it is stated that the burden of taxation will be shared fairly. This is one of the principles of public finance. The Constitution contains many aspirations. The Respondents have asked me to bear in mind the background of the promulgation of the Constitution in making a determination on the issues before the court.

In the John Harun Mwau Case (supra) the court stated that:

174. The two statutes governing the benefits of Members of Parliament are saved by sections 6 and 7 of the Sixth Schedule which preserve existing obligations of the state and preserve all existing laws subject to such alterations, qualifications an exception necessary to bring it into conformity with the Constitution. In our view therefore, the terms of service of Member of Parliament are to be determined in accordance with existing legal provisions. (emphasis mine)

The current legal provisions are contained in the National Assembly Remuneration Act and the Constitution, but it must be remembered that the Constitution is the supreme law.

In constitutional interpretation, it is the purposive interpretation to be used. In Ng Ka Ling and others v Director of Immigration (Final Appeal No. 14, 15, 16 Of 1998 (Civil) the court stated that:

It is generally accepted that in the interpretation of a constitution … a purposive approach is to be applied. The adoption of a purposive approach is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the constitution and relevant extrinsic materials. So, in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument.(emphasis mine)

Section 7 of the Sixth Schedule is categorical that:

‘All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’

It is my determination that the National Assembly Remuneration Act will continue to be in force with regard to the remuneration of the members of the National Assembly. This legislation was enacted before the promulgation of the current Constitution. The Act however, MUST, by virtue of section 7 of the Sixth Schedule, be brought into conformity with the Constitution. As a result, any legislation made by parliament or agreement that is made in violation of the provisions of the Constitution is void.

The country is coming from a background of greed and financial misappropriation. Public money has in the past not always been applied in its intended purpose of the development of the country. It is for this reason that principles of public finance were included in the Constitution. In my view, the reason that the Committee of Experts included the provision that ‘the burden of taxation would be shared fairly’ was to put a stop to the manner in which public finances were used before and to put in place more equitable and transparent financial management processes, in a manner that applies to all.

Nothing in the substantive provisions of the Constitution, nor in the Transitional and Consequential provisions in the Sixth Schedule suggests that any class of state officers would be exempt from paying taxes on any part of their income. In fact, had the intention been to exempt any state officers from the obligation of payment of tax, then that would have been expressly stated. The only logical conclusion that can be reached is that it was the will of the citizens of the country that everybody contributes to the development of the country by paying tax. I do not think the intention of the people of Kenya was that the 222 privileged members of the National Assembly be exempted from taxation on their allowances and call this a right to the members of the National Assembly.

With this background in mind, I find that it is not possible to claim that Members of the National Assembly have a right not to pay taxes on their allowances. I agree with Mr. Oluoch’s submission that exemption from taxation is a privilege, and not a right. Article 210 of the Constitution is clear that where it is envisaged that there will be a waiver or exemption from taxation, then it must be legislated and must also be reported to the Auditor General.

Section 6 of the sixth schedule upon which the Respondents lay their claim provides for the continuity of all rights and obligations of the Government or the Republic. Exemption from tax is not a right, neither is the failure to levy taxes on members of the National Assembly an obligation of the government.

The Respondents also claim that there is a legitimate expectation by virtue of the existence of the National Assembly Remuneration Act and section 6 of the Sixth Schedule.

The principle of legitimate expectation arises from an express promise. This principles was clearly crystallised in Council Of Civil Service Unions V Minister For Civil Service (1985) AC 375 at 406 where Lord Diplock, defining the principle, stated as follows:

“If the decision made unreasonably departs from the publicly stated policy or customary practice or reneges on an earlier decision or undertaking thus confounding the Applicant’s legitimate expectation from the decision maker, then it can also be argued that there has been a breach of the duty to act fairly. A person or a group may have a legitimate expectation that they will be consulted by the decision maker or if the decision maker has made promises or given undertakings which the decision in question will alter….”

In my view, it would be absurd for the Members of the National Assembly to claim they expected to continue to be exempted from payment of taxes on their allowances. They were aware of the contents of the new Constitution. They were aware that under the new dispensation, Members of the National Assembly would be expected to shoulder their portion of the tax burden. Further existing legislation would be interpreted in a manner that would bring it into conformity with the Constitution. I therefore find that there was no legitimate expectation that Members of the National Assembly would be exempted to payment of taxes.

The Respondents are of the view that taxing their allowances would amount to a violation of their right to property as it is enshrined under Article 40 of the Constitution. The right to property under the Constitution encompasses the right to acquire and own any property, such as land, goods, intellectual property, money or negotiable instruments. In my view, the right to property does not encompass the right to be paid tax-free allowances for members of the National Assembly or for any sector of the society. Allowances, paid alongside salaries, are entitlements gained in return for work done or services that are rendered. Salaries and allowances are paid to ensure that the right to an adequate standard of living is maintained. Be that as it may, the obligation to pay taxes would not be brushed aside by a right. The obligation to pay taxes is in the Constitution. As such, it is a civil duty.

All persons working in Kenya are therefore subject to the payment of taxes, and this duty cannot be contracted out of by an agreement between any of the arms of government unless and until the provisions of Article 210 (2) of the Constitution of Kenya are adhered to.

The Constitution is the supreme law of this country. It is the will of the people, or the mandate they give to dictate and direct the manner in which they ought to be governed. That is why Article 210 has no exclusion or exemption in matters of taxation. In my view, deviations are subject to judicial scrutiny. Any deviations must not be such as to deprive citizens of fair, transparent and effective tax regimes which are applicable to all in equal measure.

In the instant case, there has been no waiver of income taxes on the allowances of Members of the National Assembly that has been reported to the Auditor General as required by Article 210 (2). In addition, there has been no reason advanced by the Respondents as to why the members of the National Assembly should be ‘relieved of the burden of payment of taxes’.

It was submitted to this court that the 5^th Respondent issued a directive exempting members of the National Assembly from the payment of taxes, and requiring the Permanent Secretaries in various ministries to refund any tax that had already been levied and remitted. It is a requirement of the rule of law that the exercise of public power by any arm of the government should not be arbitrary. All decisions must be rationally related to the purpose for which the power was given, otherwise it is arbitrary and inconsistent. It is therefore my decision that to pass the constitutional requirement, the exercise of public power by the executive and parliament must at least comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action.

The Constitution provides the foundation for the control of public power. The executive and legislature exercise delegated sovereign or public power. They are therefore constrained by the Constitution, and they may not exercise any power or perform any functions that are beyond those conferred by law.

The Respondents have also claimed that it would be discriminatory for them to pay taxes. With respect, it is not. Income tax is charged on all income, and income is all gains made in regard to services rendered or work done.

In the previous constitutional dispensation, members of the National Assembly were not to pay taxes on all their allowances. In my view, to allow members of the National Assembly to be exempted from income tax on their allowances while other workers pay taxes on all income is discriminatory. It amounts to giving a benefit (that is unexplained) to members of the National Assembly.

Since the Constitution provides that the tax burden should be fairly shared, the most reasonable interpretation is that all citizens should bear their fair share of tax. There should be no class of citizens who are exempted from payment of taxes.

Taxation is a civil duty, and under the Constitution, all State Officers are under an obligation to pay tax. Due to the supremacy of the Constitution, and the fact that the Constitution binds all persons, as well as the state, there can be no agreement that can exempt any State Officer from the payment of tax.

The transitional clauses in the Constitution, and in particular, section 10, save the life of the current Parliament, but makes no mention of the terms and benefits of the members of the National Assembly. The National Assembly Remuneration Act applies with regard to the remuneration of the members of the National Assembly by virtue of section 7 of the Sixth Schedule. The Act however must be read in a manner that conforms to the Constitution as a whole. As such, the National Assembly Remuneration Act must be read with alterations necessary to bring it into conformity with the Constitution.

By virtue of the section 3 (2) of the Sixth Schedule, the members of the National Assembly were entitled to set their own terms and benefits. This entitlement was however extinguished once the Salaries and Remuneration Commission was established.

The court does not have the jurisdiction to determine the amount of taxes that any person can pay. The court is also not in a position to determine the manner in which the National Assembly should allocate public money.

It is my view that the language, spirit, style and intention of the Constitution protects and guards against the painful experiences of the past inequalities, unfairness, disproportionate treatment and enhances equality, accountability, transparency and fairness in all spheres of life within our governance system. The practical application and interpretation of the Constitution creates and develops a tax regime that applies to all citizens without any discrimination. It is my position that to hold otherwise would result in a profound absurdity, totally distorting and disregarding the intention and will of the people of Kenya.

It is not disputed that the members of Parliament fall within the definition and import of Article 210 (3) (a) and 260 of the Constitution in that it is mandatory for all state officers to therefore comply with Article 201 (b) and (d). It is incumbent or it is an obligation for state officers to participate and also be at the forefront of the promotion development and enhancement of an equitable society in the public finance system. A fair distribution of the burden of taxation cannot succeed when a segment of public officers or citizens exempt themselves through legislation or through an agreement with the executive arm of Government. That would be tantamount to a subversion of the will of the citizens and would create grave obstacles or hindrances in the implementation of the Constitution. It is also my view that failure to pay or honour constitutional responsibilities would defeat the use of public money in a prudent and responsible way.

The provisions of the Constitution are addressed to all citizens. Their application is universal, specific and uniform, and attract common consequences and benefits to all.

The rights, duties and obligations of state officers are contiguous and cannot be separated. There is no medical treatment or prescription that is prescribed in the Constitution that can apply to a different segment or category of public officer when it comes to application and imposition of tax under the Constitution. The application of tax is universal. Taxes are applied in development purposes to benefit everybody.

Article 210 calls for equality of treatment of everyone, including state officers, when it comes to the application and implementation of taxation under the new Constitution. To accord or grant some state officers greater weight, recognition or respect than others for any reason is in my humble opinion discriminatory and offensive to the letter and spirit of the Constitution. It is also an attempt to degrade, subvert and destroy the sovereign will of the citizens of the country.

I am aware the Constitution permits positive discrimination but I am confident to say that the Constitution has not permitted the route employed by the members of the National Assembly to escape their tax responsibility. It matters not that the executive agrees or countenanced their actions or omissions; such an agreement between the executive and the legislature amounts to deceit and deception which flies in the face of the clear provisions of the Constitution. In my view, the executive cannot donate an illegal or unlawful benefit and if it does, it is an act done in violation or contravention of the clear provisions of the Constitution, notwithstanding the consequences of the contravention.

Equally, parliament or parliamentarians are not entitled to accept an unlawful advancement of monies belonging to the citizens of this country.

The bottom line is that taxation to all public officers came into operation on 27^th August 2010. No party can postpone or refuse or delay the implementation of a Constitutional obligation.

The state has only one choice when it comes to implementation and application of taxation to public officers. It must obey the Constitution by enforcing and applying the clear provisions of the Constitution. If any of its agents makes the mistake of failing to honour the said constitutional obligation, the party must immediately make amends rectifying the error by remitting any taxes that have not been paid. This is the legal position that the 1^st Respondent ought to have taken in this petition.

Any provision of the National Assembly Remuneration Act, Chapter 5 of the Laws of Kenya in so far as it is in conflict with Article 210 of the Constitution of Kenya, 2010, is unconstitutional and in breach of the sovereign will of the people of Kenya.

Having addressed my mind to all the issues raised, it is my considered view that the petition has merit. It is hereby allowed with costs to the Petitioners as against the Respondents.

DATED and SIGNED this 17^THday of JANUARY 2013

M. WARSAME, J.A.

SIGNED and DELIVERED this 17^THday of JANUARY 2013

W.K. KORIR, J.

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Documents citing this one 5

Judgment 5

1.	Mjengo Limited & 3 others v Parliament of Kenya & another (Petition E290 of 2021) [2022] KEHC 13517 (KLR) (Constitutional and Human Rights) (30 September 2022) (Judgment) Mentioned	2 citations
2.	Azimio La Umoja One Kenya Coalition Party v President of Kenya & 9 others; Kenya National Commission on Human Rights (Interested Party) (Petition E153 of 2023) [2024] KEHC 8251 (KLR) (Constitutional and Human Rights) (11 July 2024) (Judgment) Explained
3.	Computech Limited v Leakey's Auctioneers & another (Constitutional Petition 280 of 2019) [2022] KEHC 13225 (KLR) (Constitutional and Human Rights) (30 September 2022) (Judgment) Mentioned
4.	Gichaga v Keroche & 5 others (Constitutional Petition 11 of 2022) [2022] KEHC 13455 (KLR) (6 October 2022) (Judgment) Applied
5.	Osiemo v National Transport and Safety Authority & 4 others (Petition 48 of 2020) [2024] KEHC 2817 (KLR) (Constitutional and Human Rights) (15 March 2024) (Judgment) Explained

Date	Case	Court	Judges	Outcome	Appeal outcome
9 May 2024	Clerk of the National Assembly of Kenya & another v Njoya & 17 others & 3 others (Civil Appeal 323 of 2019) [2024] KECA 524 (KLR) (9 May 2024) (Judgment)	Court of Appeal	A Ali-Aroni, LA Achode, P Nyamweya
17 January 2013	↳ TIMOTHY NJOYA & 17 OTHERS V ATTORNEY GENERAL & 4 OTHERS [2013] KEHC 6000 (KLR) This judgment	High Court