NAIROBI, Kenya, Dec 5 – The Kenya Revenue Authority (KRA) has filed a notice of appeal against a High Court order compelling it to issue lawyer Tom Ojienda a tax compliance certificate for the year 2018/19.
In a memorandum of appeal filed on Tuesday, the tax agency insisted that Ojienda had unmet tax obligations totaling Sh443.6 million, a factor that the taxman contended Lady Justice Wilfrida Okwany failed to consider while ordering that the lawyer be issued with a tax compliance certificate.
The judge had in a ruling on Tuesday given KRA until Wednesday to issue Ojienda with a tax compliance certificate.
“I issue a mandatory order compelling KRA to immediately issue Ojienda with the tax compliance his certificate not later than Thursday pending determination of this case,” Lady Justice Okwany ruled.
The judge said KRA had failed to convince the court that it would suffer any loss should the order be given pending determination of Ojienda’s petition.
Ojienda who currently represents the Law Society of Kenya (LSK) in the Judicial Service Commission (JSC) had told the court that he would suffer prejudice if the court failed to grant the order.
A tax compliance certificate is mandatory for lawyers seeking to represent the law society in JSC.
Ojienda termed the refusal by KRA to grant him the tax compliance certificate as a scheme designed to lock him out of LSK nominations slated for December 10.
LSK nominates two members for appointment to the JSC on the basis on gender balance.
JSC comprises of eleven commissioners among them the Chief Justice who chairs commission plenary, and the Deputy Chief Justice.
Other members of the commission are the Attorney General, a Supreme Court judge, a representative of Court of Appeal judges, a representative of High Court Judges, a Magistrate, a nominee of the Public Service Commission, and two non-lawyers being of either gender appointed by the President with National Assembly approval.
Chief Justice David Maraga last month presided over the swearing in of four new commissioners bringing the number of serving commissioners to ten.
Attorney General Kihara Kariuki replaced his predecessor Githu Muigai in the commission with former National Assembly Clerk Patrick Gichohi, ex-Cabinet Secretary Felix Koskei, and former Kenyatta University Vice Chancellor Olive Mugenda taking slots left vacant by Public Service Cabinet Secretary Margaret Kobia, Kipng’etich arap Korir and Winifred Guchu (Chief Administrative Secretary – Ministry of Water).
The four joined Maraga, DCJ Philomena Mwilu, Justice Aggrey Muchelule (High Court), Emily Ominde (Magistrate Court), and LSK representatives Mercy Deche and Prof Tom Ojienda.
Court of Appeal nominee Justice Mohammed Warsame’s appointment to the JSC has been hindered by a legal battle between the National Assembly and the judiciary, over whether or not he should be vetted by the House before being appointed to the JSC.
“The 11th member (Justice Warsame) has been identified but he is yet to be appointed. Our appeal is that the same be done because we’re not able to operate at optimum when we have one member less,” Deche appealed when Maraga presided over the swearing in of AG Kariuki, Gochohi, Koskei, and Mugenda last month.