Judge gives KRA nod to demand MPs' unpaid taxes

By NATION CORRESPONDENT
Posted Thursday, January 17 2013 at 22:30

SHARE THIS STORY

Kenya Revenue Authority was on Thursday given the green light to go after any unpaid taxes which the outgoing MPs were supposed to remit following the promulgation of the Constitution which required them to do so.

High Court judge Weldon Korir held that the MPs were not exempted from paying taxes on their income since Article 210 of the Constitution provides that the burden of taxation shall be shared fairly.

He said that the National Assembly Remuneration Act, which exempted MPs from paying taxes was enacted before the promulgation of the new Constitution and that it must be brought into conformity with the Law.

"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 a country and it is for this reason that principles of public finance were included in the Constitution," said judge Korir.

He noted that it would be absurd for the lawmakers to claim they expected to continue to be exempted from payment of taxes on their allowances since they were aware that under the new dispensation, MPs would be expected to shoulder their portion of the tax burden.

"The Constitution is the supreme law of this country. It is the will of the people, the mandate they give to direct the manner in which they ought to be governed."

The judge also said all persons working in the country were subject to payment of taxes, a duty he said could not be contracted out, by an agreement between any arms of the government.

He said the Executive and Legislature exercised delegated public power and were therefore constrained by the Constitution and could not exercise any power or perform any functions that were beyond those conferred by law.

"The Executive cannot donate an illegal benefit and if it does, it is an act done in violation of the Constitution, notwithstanding the consequences of the contravention. Equally, parliamentarians are not entitled to accept an unlawful advancement of monies belonging to the citizens of this country," said judge Korir.

The State, according to him, had only one choice when it came to implementation and application of taxation to public officers which he noted was, to obey the Constitution by enforcing and applying the clear provisions of the Constitution.

He said that if any of its agents made 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.

Some 18 human rights group members among them retired Presbyterian Church of East Africa minister Timothy Njoya had filed a constitutional reference last year seeking a declaration that all State officers including MPs were under obligation to pay taxes.

They were also seeking to reverse a State directive to all permanent secretaries to refund all taxes deducted from ministers and their assistants.