1. By way of Notice of Motion dated 10th December 2025, the Applicant seeks the following orders.
1) An order of Certiorari to remove to this Honourable Court to be quashed the administrative action and or Notice of the 1st , 2nd and 3rd Respondents of adding the Applicant's Personal Identification Numbers (PIN) No. P051150583U to the VAT special table.
2) An order of prohibition prohibiting the 2nd and 3rd Respondents whether by themselves, agents, servants or howsoever otherwise, from suspending, cancelling, deactivating, deregistering, imposing PIN dormancy and or PIN restriction to the Applicant's Personal Identification Numbers (PIN) No. P051150583U.
3) An order of mandamus compelling the 2nd and 3rd Respondents whether by themselves, agents, servants or howsoever otherwise acting pursuant to its authority or under any of them, to activate the Applicant's Personal Identification Numbers (PIN) No. P051150583U so as to enable the Applicant to file their VAT returns & account for their ongoing taxable transactions under their self-assessment tax obligations
4) An order of prohibition prohibiting the 1st , 2nd and 3rd Respondents whether by themselves, agents, servants or howsoever otherwise, from threatening, intimidating or in any way harassing, acting in enforcement and/or implementation of the demand notices served upon the Applicant herein pursuant to the Demand Notices.
5) That costs herein be borne by the Respondents.
2. The Application is expressed to be brought under Order 53 Rule 3 (7) (2) (3) and 4 (7) (2) 5, 6 and 7 (7) and (2) of the Procedure Rules. 2010. Sections 8 and 9 of the Law Reform Act Cap 26 Laws of Kenya, Article 159 of the Constitution of Kenya 2010 and all other enabling provision of the Law.
3. The Application is premised on the grounds on the face of it and the averments of the Applicant in the statutory statement and Verifying Affidavit sworn by Rupaal Vithlani who described himself as the Director of the Applicant Company.
4. He deponed that on 12th September 2025 during its ordinary course of business, the Applicant received a letter of even date, from the 2nd Respondent, notifying it that the 2nd Respondent is conducting investigations on fraudulently generated Tax Invoices under the name of Viostruct Global Ltd, being PIN No. P051750466J.He annexed and marked as "RV-1” a copy of the letter. It is the Applications that the 2nd Respondent stated that the iTax records show that the Applicant purchased from the supplier goods worth Kshs. 7,203,879.00/= and claimed VAT input of Kshs. 1,152,620.00 in the July 2025 VAT return. The 2nd Respondent requested the Applicant to furnish it with supporting documents to verify the purchases, including: Purchase invoices, schedule of payment made to supplier and name of individual receiving payment, delivery notes, and proof of payment and contact details. Additionally, he deponed that the Applicant replied to the 2nd Respondent's letter on 17th September 2025 enclosing the requested documents, and making it crystal clear that it has always been in compliance with Section 17(1), (2) and (3) of the Value Added Tax Act, thereby refuting any claims of fraud. He annexed and marked as "RV-2" a copy of the letter and the enclosed documents as follows; a) "RV-2a" - copies of the purchase invoices and proof of payment; b) "RV-2b" - copies of the delivery notes.
5. The deponent averred that the 2nd Respondent summoned the Applicant for a meeting on 18th September 2025, to allow the Applicant to shed light on the transactions, and the Applicant duly complied with the requests, attended the scheduled meeting on 18th September 2025, and followed up the 2nd Respondent's demand by submitting the documents again, via email on 19th September 2025.
6. He urged that the Applicant received a letter from the 3rd Respondent, dated 29th September 2025, notifying it that from henceforth, its PIN had been added to the "VAT Special Table". The consequence being that the Applicant cannot file its VAT returns or claim VAT input. He argued that the Applicant registered a protest to the decision but did not receive a response from any of the Respondents.
7. The Applicant argues that on 1st October 2025, the 2nd Respondent issued the Applicant with a Demand Letter, of even date, demanding that the Applicant pay a total sum of Kshs. 1,152,620.00 within 7 days of receipt of the demand letter failure to which, the 2nd Respondent is at liberty to institute criminal prosecution. He pointed out that curiously, the inquiry and or notices came from two different departments of the 1st Respondent, all meting out different actions and or punishments, unilaterally. The Applicant argues that it is a mystery to the Applicant how the decision to add it to the special table was reached, without notice, explanation and or opportunity to examine any of its suppliers.
8. The Applicant argues that the Respondents never made a report, finding or response to the information supplied by the Applicant to justify their Tax demand or VAT Special Table impositions. The Applicant responded to the 2nd Respondent's demand letter on 2nd October 2025, objecting to the demand citing that the amount in question was already remitted and an additional payment would not only be unfair but also amount to double jeopardy.
9. The Applicant further argues that on 8th October 2025 the Applicant received a letter from the 3rd Respondent, inviting the Applicant for a meeting to be held on 13th October 2025 at the 3rd Respondent's offices. The meeting did not proceed as 13th October 2025 was gazetted as a public holiday and as such, the same was rescheduled to 22nd October 2025. On 22nd October 2025, the Applicant attended the said meeting which was of no effect, in view of the fact that the 3rd Respondent did not address on its failure to follow due process, or the decision to add the Applicant to the VAT Special Table.
10. The Applicant argues that the 3rd Respondent stated that the Applicant would be issued with an assessment and that a further compliance audit would be conducted. The 3rd Respondent, vide a letter dated 28th October 2025, demanded that the Applicant pays a total of Kshs. 33,486,663.00 being the total outstanding tax, inclusive of penalties and interests.
11. In issuing the above demand, it unilaterally and arbitrarily widened the scope of its inquiry and, conveniently, failed to address the issue of the VAT Special Table. According to the Applicant, the meeting by the 3rd Respondent was an afterthought, fuelled with malice and a poor attempt by the Respondent to comply with due process. Additionally, that the VAT special table, is a creature not known in law and the act of suspending, cancelling, deactivating, deregistering, imposing PIN dormancy and or PIN restriction to the Applicant's Personal Identification Numbers (PIN) No P051150583U is not supported by the Constitution, tax laws and or regulation.
12. According to the Applicant, the act of suspension of the Applicants’’ PIN has crippled the Applicants’ business as they will not be in position to file their returns of the preceding months pending this suspension, thereby preventing Applicant from being tax compliant. It argues that it had a legitimate expectation that the documents they furnished the Respondents with, during their prospecting phase, would be considered before a decision is taken and further that the Respondents would provide a finding report on how the decision was reached.
13. It is the Applicant’s case that the taxpayer is only required to provide documents prescribed as envisaged under Section 17 of the Value Added Tax Act, thereafter, the burden shifts to the Respondents. To this end, it affirms that it had complied with the above provisions of tax laws. However, the Respondent has failed to discharge its evidentiary burden.
14. It is argued further that it was not the first time that the Respondents are abusing their powers by unfairly targeting the Applicant as a similar case occurred which led to the Applicant filing a case at the Tax Appeals Tribunal in TAT No. E487 OF 2025, wherein the matter was settled out of court on 25th July 2025.
15. In a span of less than three months The Respondents have again pursued the Applicant over similar issues, which is an abuse of power and harassment of the Applicant. Prior to that, in the periods of May 2024, the 1st Respondent conducted an assessment and thereafter issued the Applicant with a preliminary investigations findings dated 7th May 2024 together with Notice of Tax Assessment dated 24th May 2024. As seen in the copy of the Preliminary investigation findings dated 7th May 2024 and Notice of Tax Assessment dated 24th May 2024.
16. The Applicant argues that the Applicant is a diligent taxpayer and has always remained compliant and up to date with respect to filing its taxes, as seen in a copy of the Applicant's iTax General Ledger.
17. The suspension of the PIN is tantamount to collapsing the business of the Applicant, as they will not be in a position to claim input vat from "ETR" invoices and or receipts on the eTims platform which is the only system available to taxpayers in Kenya.
18. Further, the Applicant's customers will equally not be in a position to generate and or claim input VAT thus strangling and frustrating the Applicant's business. Additionally, that the Applicant has already received protests from its major customers who have threatened to cut ties with it as seen in the copies of the protest emails and letter dated 24th October 2025 from the Applicant's customers.
19. The actions of the 1st, 2nd and 3rd Respondent offend the right to fair hearing as stipulated under Article 50(2) of the Constitution and the rules of natural justice as envisaged under Section 4(3) of the Fair Administrative Actions Act. It argues that the Applicant's inherent rights to liberty and fair hearing have been violated and if the Respondents are allowed to enforce, having enforced their decisions, the Applicant will continue to suffer grievous breach of their Constitutional rights.
Respondents’ Replying Affidavit
20. The 1st Respondent filed a Replying Affidavit dated 13th January 2026, sworn by one Victor Orege in opposition to the Application. He deponed that the Applicant’s Notice of Motion Application lacks merit and the Respondents ought to be allowed to enforce the law, which is its statutory mandate.
21. He laid down the brief facts of the case, urging that the Applicant is a holding company operating retail chains dealing in mobile phones, laptops and ICT products under the brands Fonexpress and Phonelink. That upon conducting compliance check on the Applicant, it was established that the Applicant was found to have claimed input VAT for the month of July 2025 with a gross value of Kshs. 7,203, 879 without corresponding output tax being declared by the supplier, Viostruct Global Ltd thereby contravening section 17(2) of the VAT Act as well as Regulation 9 of the VAT Regulations. The supplier, Viostruct Global Ltd, had lodged a complaint with the Respondents reiterating that they did not make sales to the Applicant for the month of July, 2025. He annexed and marked as “KRA - 1” the correspondences from Viostruct Global Ltd. Vide various correspondences, the Applicant was requested to provide supporting documents to support the input VAT claimed from Viostruct Global Ltd and failed to provide the supporting documents requested. He annexed and marked as “KRA - 2” copies of the correspondences.
22. Consequently, the Applicant was issued with an assessment/demand on 28th October 2025 which copies he annexed and marked as “KRA 3”. Further, that the Applicant, having claimed input VAT arising out of non-existent sales from the supplier therefore was in contravention of the VAT Act and enforcement action was initiated, including placement in the VAT special table. Vide a notice dated 29th September 2025, the Applicant was given a notice of addition to VAT special table. He annexed and marked as “KRA - 4” is the copy of the notice).
23. The deponent proceeded to lay down the legal framework for Administration and enforcement of Value Added Tax, urging that the VAT Act CAP 476 is an Act of Parliament to review and update the law relating to value added tax; to provide for the imposition of value added tax on supplies made in, or imported into Kenya, and for connected purposes. He cited the provisions of Section 17 (2), 36, 42, 43, 44 and 47 of the VAT Act and reproduced the same. he stated that the 1st Respondent introduced the VAT Special Table in August 2022 as a targeted compliance enforcement tool designed to address VAT compliance challenges. Additionally, that the Administration of the VAT Special Table goes hand in hand with the 1st Respondent’s administration and enforcement of the VAT Act together with the TPA.
24. On Whether the implementation and enforcement of the VAT Special Table violates the Applicant’s rights to fair administrative action and fair hearing, the deponent averred that prior to placing a Taxpayer on the VAT Special Table, the 1st Respondent is first satisfied that the Taxpayer has noncompliance issues either the Taxpayer has failed to file returns, is a nil filer, has failed to pay taxes due after filing their returns or being a nil filer, some other parties have claimed from them. The 1st Respondent then proceeds to request the Taxpayer to either conform by either filing their returns or making the payments failure of which the 1st Respondent might proceed to place the Taxpayer on the VAT Special Table.
25. He stated that an assessment was issued to the Applicant on 28th October 2025 annexing and marking as KRA-10 the copy of the assessment. Further, that where the Taxpayer fails to conform to the request by the 1st Respondent, or does not satisfy the Respondents on the issues raised, the Respondent placed the Applicant on the VAT Special Table and the Applicant is subsequently informed of the same. He Annexed and Marked as “KRA- 4” a copy of communication to the Applicant that they have been placed on the VAT Special Table. He stated that once a Taxpayer is placed on the VAT special table, the special table restricts taxpayers from performing certain Vat related functions until they comply with the specific issues that the Respondent’s will have pointed to the taxpayer.
26. He urged that the 1st Respondent has developed internal/administrative guidelines for adding and removing tax payers form the VAT Special Table for its staff. Further, that guidelines which have been communicated to the general public by the Respondents which he annexed and marked as “KRA-10”. The deponent averred that the argument that the Respondents’ VAT Special Table lacks legal backing by suspending Applicant’s rights without notice, hearing or review mechanism is thus misplaced. Further, that at no point has the 1st Respondent abandoned the VAT Act and Tax Procedures Act in favour of the VAT Special Table, but rather the 1st Respondent is exercising the powers conferred by, the VAT Act and the KRA Act. He stated that no evidence has been provided by the Applicant to prove that the VAT Special Table contravenes the Constitutional principles in Tax Administration.
27. He urged that the Applicant’s prayers do not meet the threshold for grant of such orders. In response to paragraphs 7-11 of the Applicant’s supporting affidavit, he urged that the Respondents reiterates that it is empowered by section 59 of the Tax Procedures Act to request for documents from the Applicant in the course of discharge of its statutory functions and doing so cannot be a reason to being dragged in the courts of law. Further, in response to paragraph 12-14, 17, 18 and 39 of the supporting affidavit, the Respondent stated that the Applicant was granted a fair and adequate opportunity to respond to the tax compliance issues before being placed in the VAT special table.
28. He deponed that the Applicant has not demonstrated how the Respondent’s discharge of its statutory is illegal or unreasonable. Further, that contrary to the Applicant’s assertions at paragraph 19 of its affidavit, the Respondent states that upon conclusion of its investigations, a tax demand was issued on 28th September 2025 which the Applicant is required to object to the demand as required by section 51(2) of the TPA. Additionally, that the issues the Applicant is raising at paragraphs 20, 36-42 ought to be raised through an objection to the demands issued rather than doing so before this Court. In response to paragraphs 25-27, 43-45 of the Applicant’s Supporting Affidavit, he urged that the Respondent’s actions were in line with its statutory mandate and it cannot be gagged as argued by the Applicant. In response to paragraphs 28-30 of the Applicant’s supporting affidavit, he urged that the Respondent affirmed its position that placement in VAT special table is supported by law.
29. The deponent averred that if the court grants the prayers sought, the likely party to suffer irreparable loss and immense prejudice would be the Respondents and the Government of Kenya which is likely to continue losing revenue through the various schemes which the VAT Special Table intends to curb. He urged that the public interest is for the denial of the prayers sought and prayed that the Application be dismissed.
Ex Parte Applicants’ Supplementary Affidavit
30. The Ex Parte Applicant filed a Supplementary Affidavit dated 5th February 2026, sworn by Rupaal Vithlani in response to the Replying Affidavit. In response to paragraph 5 to 10, he averred that it indeed shows that the Respondents have no authority and or power to make law, in fact the Respondents concede in paragraph 8 that they can only administer and enforce the provisions of the written laws as set out in Part I & Il of the First Schedule of the Kenya Revenue Act. Further, that he denied the contents of paragraph 13 which is denied, and stated that the Respondent relies on Regulation 9 of the VAT Regulations which was deleted by Legal Notice 188 of 2020. Additionally, that the ex parte Applicant at all times adhered to the VAT Act when filing their VAT returns as relates to Viostruct Global Ltd and supplied information and evidence and the same was annexed RV-3a, 3b and RV-4, in my supporting affidavit.
31. In response to paragraphs 13 to 18, he denied the contents thereof as untrue. Further, that paragraphs 19 to 28 are a regurgitation of legal provisions and not relevant to the issue at hand. He urged that the Respondent cites Section 36 of the VAT Act which is not relevant because; The section deals with cancellation of registration and the matter before the Honourable Court is not about cancellation of registration; the section deals with a registered person who ceases to make taxable supplies, if anything the Applicant was not a supplier in the transaction with Viostruct Global Ltd, it was Viostruct Global Ltd that was the supplier and the provision would therefore apply to them, the suppliers; that there has never been any notice by the Respondents on a cancellation as per Section 36 (3) as the same was not applicable and, that Section 36 (5) of the VAT Act is crystal clear that a cancellation can only happen on a registered person (supplier) who is no longer required to be registered. This is a fact that was never established neither is it relevant to this suit, but if the Respondents are to rely on the same, to which they should be estopped, they never adhered to the said provision.
a) A perusal of the guidelines does not show that the same are anchored under Section 36 of the VAT Act. The provision and reliance are only supported by the Respondents fecund and stretched imagination only meant to dupe this court. f) A cancellation process is not equal to the VAT Special Table and the same are not synonymous.
32. The deponent averred that the Respondents' reliance on Section 17(2) of TPA and 42 of the VAT Act is misplaced. That the Ex Parte Applicant is in possession of a valid tax invoice issued by the supplier (Viostruct Global Ltd) through the eTlMS system, fully compliant with statutory requirements. Further, that Section 17(3) of the VAT Act clearly and exhaustively sets out the documentation a taxpayer is required to furnish in support of an input tax claim, and once such compliance is achieved, input tax may not be disallowed. The Ex Parte Applicant fully complied with the said statutory requirements and supplied all relevant documents as prescribed thereunder. Despite this compliance and without any lawful basis, the Respondents arbitrarily place the ex parte Applicant on the VAT Special Table, thereby disabling it from filing its VAT returns and remitting taxes as required by law. This action was punitive, disproportionate and wholly unsupported by statute and amounts to an unlawful administrative sanction in disregard of the clear provisions of the VAT Act.
33. The deponent averred that they have at all times kept proper records, and books of accounting. Further, that paragraph 28 does not in any way come to the aid of the Respondents, as it merely outlines the statutory powers conferred upon the Cabinet Secretary under the relevant tax statutes. However, the purported VAT Special Table Guidelines constitute delegated legislation within the meaning of the Statutory Instruments Act, yet the same were neither made, prescribed, nor issued by the Cabinet Secretary as required in law, nor subjected to mandatory public participation, parliamentary scrutiny, or gazettement.
34. Similarly, that Article 109 of the Constitution is clear that parliament has the power of legislation. The impugned VAT Special Table guidelines are governed by the Statutory Instruments Act as the same fit the definition of a Statutory Instrument. The Respondents came up with tax guidelines without power, authority and importantly, without Parliament's scrutiny. That the VAT Special Table Guidelines ought to be declared void, the Respondents having failed to present said guidelines before Parliament within the prescribed timelines, as stipulated in the Statutory Instruments Act.
35. The deponent averred that paragraphs 29, 30, 31, 32, 33, 35, 36 and 37 are not applicable to the matter at hand and remain irrelevant. Further, that Section 14 of TPA which also deals with cancellation of PIN is not relevant as no party notified the commissioner of their intention to have their PIN cancelled, and that the VAT Special Table is not cancellation. He urged that paragraphs 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, and 51 are general lamentations not supported in fact and or law, neither are the same relevant this case, and denied the contents. Further that he opposed paragraphs 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 62, averring that the measures taken were illegal, unprocedural and not supported by any law.
36. The deponent stated that paragraphs 63, 64, 65, 66, 67 and 68 are irrelevant and do not show where the Respondents obtain the power to continue enforcing the VAT Special Table. Further that at paragraph 64 and 65 the Respondents concede that it was the supplier who was to have the tax liability and not the Ex Parte Applicant. Additionally, that the Respondents concede that indeed every registered person shall submit a return, in the prescribed form and manner, in respect of each tax not later than the twentieth day after the end of that period as per Section 44 of the VAT Act. However, upon being put on the VAT Special Table, the ex parte Applicant's PIN was suspended and it could not file its VAT returns. He reiterated that the Respondents do not show what gives them power and authority to suspend this important provision. A suspension is therefore illegal as returns must be filed monthly.
37. The deponent averred that the core issue in this dispute is the Respondents' contravention of tax laws by placing the ex parte Applicant on the VAT Special Table, an enforcement mechanism with no express grounding in statute. The deponent urged that from the facts of the case it was also unprocedural of Respondents to issue the demand notice of 28th October 2025 prior to issue a letter of findings, which would allow the taxpayer time and opportunity to respond to or counter the findings, therefore the demand letter itself was unfairly issued. Additionally, that even if we were to consider the guidelines as proper, the Respondents never adhered to the same, as a taxpayer is supposed to be given at least 7 days to respond to the Notice of Special Table, but this was not the case.
Ex Parte Applicants’ Submissions
38. Counsel for the Ex Parte Applicant identified the issues for determination and proceeded to submit on the same.
39. On whether the action of placing the ex parte Applicant under VAT Special Table was legal and lawful, Counsel urged that that the VAT Special Table is not a creature of law as contended by the Respondent. That it is not expressly anchored under the VAT Act or any other tax law. Further, that the Respondents continue to enforce this alien creature without legal backing, public participation, or transparency which is not only illegal but also a gross violation of taxpayers' constitutional rights. He urged that it is now trite law that every policy that affects the general public must be subjected to participatory safeguards. Counsel cited the case of Law Society of Kenya v National Assembly of Kenya & 3 others (2025)1 KEHC 5472 (KLR) and maintained that the VAT Special Table Guidelines remain unlawfully promulgated, procedurally improper and devoid of any legal force or effect. Further, that the Respondents knowing fully well the implications of a taxpayer being added into the VAT Special Table, they ought to have subjected such policy to public participation for the purposes of generating public input as opposed to imposing the same on taxpayers, arbitrarily.
40. Counsel urged that the ex parte Applicant does not refute that it ought to remit taxes and that it has in fact remained compliant in discharging its VAT obligations. However, it has a legitimate expectation that the taxes it remits must be governed by a detailed statutory law and not the discretion of the tax master. Further, that the implications of placing the ex parte Applicant on the VAT Special Table illegally, goes beyond tax compliance or enforcement issues. That the existing tax laws already provide robust legal and lawful tools to monitor compliance such as requesting for records, conducting audits and issuing assessments as envisaged by Section 58-61 of the Tax Procedures Act. He cited the case of Silver Chain Limited v Commissioner Income Tax & Others (2016) KEHC, Fleur Investments Limited v Commissioner of Domestic Taxes and another (2018) KECA 341 (KLR) and Republic v Commissioner of Domestic Taxes Exparte Sony Holdings Limited (2019) KEHC 11987 (KLR).
41. Counsel urged that the purported VAT Special Table Guidelines constitute delegated legislation within the meaning of the Statutory Instruments Act, yet the same were neither made, prescribed, nor issued by the Cabinet Secretary as required in law, nor subjected to mandatory public participation, parliamentary scrutiny, or gazettement. Consequently, the said. He maintained that the Respondents have failed to establish the tax law provision that creates the VAT Special Table.
42. Counsel urged that the unlawful nature of the VAT Special Table emanates from lack of legal framework and it continues to violate constitutional principles such as public participation under Article 10 and constitutional rights of Article 47, 50(2). That Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. He invited the court to interrogate the guidelines vis-a-vis the Statutory Instrument Act, urging that under the Act, a "statutory instrument" means any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued. Further, that it would therefore mean that the impugned VAT Special Table guidelines herein are governed by the Statutory Instruments Act as the same fit the definition of a Statutory Instrument.
43. Counsel submitted that the guidelines never complied with the provision as laid out under the Statutory Instruments Act for various reasons to wit; The Respondents never adhered to Section 4 as it shows the objective of the Act. No consultation was done, as the Respondents averred that the guidelines are an internal administrative guideline; Section 5 also delves into consultation in detail and indeed the Respondents failed and or neglected to adhere to this provision; Section 5A was also not adhered to as there is no explanatory memorandum; Part III was also not complied with when it comes to impact assessments; Part IV was equally not complied with as it required Parliamentary scrutiny in compliance with Article 109 of the Constitution; Section 22 (1) provides: every statutory instrument shall be published in the Kenya Gazette and shall be assigned a serial number as of the year in which it is made which shall be printed on the face of the statutory instrument. The guidelines are not compliant with this section, they remain to therefore have no legal effect, void, inoperative and unenforceable.
44. Counsel urged that the above non-compliance demonstrates how the Respondents came up with a guideline without power, authority and importantly, without Parliament's scrutiny. Counsel cited the case of Kenya
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1) An order of Certiorari to remove to this Honourable Court to be quashed the administrative action and or Notice of the 1st , 2nd and 3rd Respondents of adding the Applicant's Personal Identification Numbers (PIN) No. P051150583U to the VAT special table.
2) An order of prohibition prohibiting the 2nd and 3rd Respondents whether by themselves, agents, servants or howsoever otherwise, from suspending, cancelling, deactivating, deregistering, imposing PIN dormancy and or PIN restriction to the Applicant's Personal Identification Numbers (PIN) No. P051150583U.
3) An order of mandamus compelling the 2nd and 3rd Respondents whether by themselves, agents, servants or howsoever otherwise acting pursuant to its authority or under any of them, to activate the Applicant's Personal Identification Numbers (PIN) No. P051150583U so as to enable the Applicant to file their VAT returns & account for their ongoing taxable transactions under their self-assessment tax obligations
4) An order of prohibition prohibiting the 1st , 2nd and 3rd Respondents whether by themselves, agents, servants or howsoever otherwise, from threatening, intimidating or in any way harassing, acting in enforcement and/or implementation of the demand notices served upon the Applicant herein pursuant to the Demand Notices.
5) That costs herein be borne by the Respondents.
2. The Application is expressed to be brought under Order 53 Rule 3 (7) (2) (3) and 4 (7) (2) 5, 6 and 7 (7) and (2) of the Procedure Rules. 2010. Sections 8 and 9 of the Law Reform Act Cap 26 Laws of Kenya, Article 159 of the Constitution of Kenya 2010 and all other enabling provision of the Law.
3. The Application is premised on the grounds on the face of it and the averments of the Applicant in the statutory statement and Verifying Affidavit sworn by Rupaal Vithlani who described himself as the Director of the Applicant Company.
4. He deponed that on 12th September 2025 during its ordinary course of business, the Applicant received a letter of even date, from the 2nd Respondent, notifying it that the 2nd Respondent is conducting investigations on fraudulently generated Tax Invoices under the name of Viostruct Global Ltd, being PIN No. P051750466J.He annexed and marked as "RV-1” a copy of the letter. It is the Applications that the 2nd Respondent stated that the iTax records show that the Applicant purchased from the supplier goods worth Kshs. 7,203,879.00/= and claimed VAT input of Kshs. 1,152,620.00 in the July 2025 VAT return. The 2nd Respondent requested the Applicant to furnish it with supporting documents to verify the purchases, including: Purchase invoices, schedule of payment made to supplier and name of individual receiving payment, delivery notes, and proof of payment and contact details. Additionally, he deponed that the Applicant replied to the 2nd Respondent's letter on 17th September 2025 enclosing the requested documents, and making it crystal clear that it has always been in compliance with Section 17(1), (2) and (3) of the Value Added Tax Act, thereby refuting any claims of fraud. He annexed and marked as "RV-2" a copy of the letter and the enclosed documents as follows; a) "RV-2a" - copies of the purchase invoices and proof of payment; b) "RV-2b" - copies of the delivery notes.
5. The deponent averred that the 2nd Respondent summoned the Applicant for a meeting on 18th September 2025, to allow the Applicant to shed light on the transactions, and the Applicant duly complied with the requests, attended the scheduled meeting on 18th September 2025, and followed up the 2nd Respondent's demand by submitting the documents again, via email on 19th September 2025.
6. He urged that the Applicant received a letter from the 3rd Respondent, dated 29th September 2025, notifying it that from henceforth, its PIN had been added to the "VAT Special Table". The consequence being that the Applicant cannot file its VAT returns or claim VAT input. He argued that the Applicant registered a protest to the decision but did not receive a response from any of the Respondents.
7. The Applicant argues that on 1st October 2025, the 2nd Respondent issued the Applicant with a Demand Letter, of even date, demanding that the Applicant pay a total sum of Kshs. 1,152,620.00 within 7 days of receipt of the demand letter failure to which, the 2nd Respondent is at liberty to institute criminal prosecution. He pointed out that curiously, the inquiry and or notices came from two different departments of the 1st Respondent, all meting out different actions and or punishments, unilaterally. The Applicant argues that it is a mystery to the Applicant how the decision to add it to the special table was reached, without notice, explanation and or opportunity to examine any of its suppliers.
8. The Applicant argues that the Respondents never made a report, finding or response to the information supplied by the Applicant to justify their Tax demand or VAT Special Table impositions. The Applicant responded to the 2nd Respondent's demand letter on 2nd October 2025, objecting to the demand citing that the amount in question was already remitted and an additional payment would not only be unfair but also amount to double jeopardy.
9. The Applicant further argues that on 8th October 2025 the Applicant received a letter from the 3rd Respondent, inviting the Applicant for a meeting to be held on 13th October 2025 at the 3rd Respondent's offices. The meeting did not proceed as 13th October 2025 was gazetted as a public holiday and as such, the same was rescheduled to 22nd October 2025. On 22nd October 2025, the Applicant attended the said meeting which was of no effect, in view of the fact that the 3rd Respondent did not address on its failure to follow due process, or the decision to add the Applicant to the VAT Special Table.
10. The Applicant argues that the 3rd Respondent stated that the Applicant would be issued with an assessment and that a further compliance audit would be conducted. The 3rd Respondent, vide a letter dated 28th October 2025, demanded that the Applicant pays a total of Kshs. 33,486,663.00 being the total outstanding tax, inclusive of penalties and interests.
11. In issuing the above demand, it unilaterally and arbitrarily widened the scope of its inquiry and, conveniently, failed to address the issue of the VAT Special Table. According to the Applicant, the meeting by the 3rd Respondent was an afterthought, fuelled with malice and a poor attempt by the Respondent to comply with due process. Additionally, that the VAT special table, is a creature not known in law and the act of suspending, cancelling, deactivating, deregistering, imposing PIN dormancy and or PIN restriction to the Applicant's Personal Identification Numbers (PIN) No P051150583U is not supported by the Constitution, tax laws and or regulation.
12. According to the Applicant, the act of suspension of the Applicants’’ PIN has crippled the Applicants’ business as they will not be in position to file their returns of the preceding months pending this suspension, thereby preventing Applicant from being tax compliant. It argues that it had a legitimate expectation that the documents they furnished the Respondents with, during their prospecting phase, would be considered before a decision is taken and further that the Respondents would provide a finding report on how the decision was reached.
13. It is the Applicant’s case that the taxpayer is only required to provide documents prescribed as envisaged under Section 17 of the Value Added Tax Act, thereafter, the burden shifts to the Respondents. To this end, it affirms that it had complied with the above provisions of tax laws. However, the Respondent has failed to discharge its evidentiary burden.
14. It is argued further that it was not the first time that the Respondents are abusing their powers by unfairly targeting the Applicant as a similar case occurred which led to the Applicant filing a case at the Tax Appeals Tribunal in TAT No. E487 OF 2025, wherein the matter was settled out of court on 25th July 2025.
15. In a span of less than three months The Respondents have again pursued the Applicant over similar issues, which is an abuse of power and harassment of the Applicant. Prior to that, in the periods of May 2024, the 1st Respondent conducted an assessment and thereafter issued the Applicant with a preliminary investigations findings dated 7th May 2024 together with Notice of Tax Assessment dated 24th May 2024. As seen in the copy of the Preliminary investigation findings dated 7th May 2024 and Notice of Tax Assessment dated 24th May 2024.
16. The Applicant argues that the Applicant is a diligent taxpayer and has always remained compliant and up to date with respect to filing its taxes, as seen in a copy of the Applicant's iTax General Ledger.
17. The suspension of the PIN is tantamount to collapsing the business of the Applicant, as they will not be in a position to claim input vat from "ETR" invoices and or receipts on the eTims platform which is the only system available to taxpayers in Kenya.
18. Further, the Applicant's customers will equally not be in a position to generate and or claim input VAT thus strangling and frustrating the Applicant's business. Additionally, that the Applicant has already received protests from its major customers who have threatened to cut ties with it as seen in the copies of the protest emails and letter dated 24th October 2025 from the Applicant's customers.
19. The actions of the 1st, 2nd and 3rd Respondent offend the right to fair hearing as stipulated under Article 50(2) of the Constitution and the rules of natural justice as envisaged under Section 4(3) of the Fair Administrative Actions Act. It argues that the Applicant's inherent rights to liberty and fair hearing have been violated and if the Respondents are allowed to enforce, having enforced their decisions, the Applicant will continue to suffer grievous breach of their Constitutional rights.
Respondents’ Replying Affidavit
20. The 1st Respondent filed a Replying Affidavit dated 13th January 2026, sworn by one Victor Orege in opposition to the Application. He deponed that the Applicant’s Notice of Motion Application lacks merit and the Respondents ought to be allowed to enforce the law, which is its statutory mandate.
21. He laid down the brief facts of the case, urging that the Applicant is a holding company operating retail chains dealing in mobile phones, laptops and ICT products under the brands Fonexpress and Phonelink. That upon conducting compliance check on the Applicant, it was established that the Applicant was found to have claimed input VAT for the month of July 2025 with a gross value of Kshs. 7,203, 879 without corresponding output tax being declared by the supplier, Viostruct Global Ltd thereby contravening section 17(2) of the VAT Act as well as Regulation 9 of the VAT Regulations. The supplier, Viostruct Global Ltd, had lodged a complaint with the Respondents reiterating that they did not make sales to the Applicant for the month of July, 2025. He annexed and marked as “KRA - 1” the correspondences from Viostruct Global Ltd. Vide various correspondences, the Applicant was requested to provide supporting documents to support the input VAT claimed from Viostruct Global Ltd and failed to provide the supporting documents requested. He annexed and marked as “KRA - 2” copies of the correspondences.
22. Consequently, the Applicant was issued with an assessment/demand on 28th October 2025 which copies he annexed and marked as “KRA 3”. Further, that the Applicant, having claimed input VAT arising out of non-existent sales from the supplier therefore was in contravention of the VAT Act and enforcement action was initiated, including placement in the VAT special table. Vide a notice dated 29th September 2025, the Applicant was given a notice of addition to VAT special table. He annexed and marked as “KRA - 4” is the copy of the notice).
23. The deponent proceeded to lay down the legal framework for Administration and enforcement of Value Added Tax, urging that the VAT Act CAP 476 is an Act of Parliament to review and update the law relating to value added tax; to provide for the imposition of value added tax on supplies made in, or imported into Kenya, and for connected purposes. He cited the provisions of Section 17 (2), 36, 42, 43, 44 and 47 of the VAT Act and reproduced the same. he stated that the 1st Respondent introduced the VAT Special Table in August 2022 as a targeted compliance enforcement tool designed to address VAT compliance challenges. Additionally, that the Administration of the VAT Special Table goes hand in hand with the 1st Respondent’s administration and enforcement of the VAT Act together with the TPA.
24. On Whether the implementation and enforcement of the VAT Special Table violates the Applicant’s rights to fair administrative action and fair hearing, the deponent averred that prior to placing a Taxpayer on the VAT Special Table, the 1st Respondent is first satisfied that the Taxpayer has noncompliance issues either the Taxpayer has failed to file returns, is a nil filer, has failed to pay taxes due after filing their returns or being a nil filer, some other parties have claimed from them. The 1st Respondent then proceeds to request the Taxpayer to either conform by either filing their returns or making the payments failure of which the 1st Respondent might proceed to place the Taxpayer on the VAT Special Table.
25. He stated that an assessment was issued to the Applicant on 28th October 2025 annexing and marking as KRA-10 the copy of the assessment. Further, that where the Taxpayer fails to conform to the request by the 1st Respondent, or does not satisfy the Respondents on the issues raised, the Respondent placed the Applicant on the VAT Special Table and the Applicant is subsequently informed of the same. He Annexed and Marked as “KRA- 4” a copy of communication to the Applicant that they have been placed on the VAT Special Table. He stated that once a Taxpayer is placed on the VAT special table, the special table restricts taxpayers from performing certain Vat related functions until they comply with the specific issues that the Respondent’s will have pointed to the taxpayer.
26. He urged that the 1st Respondent has developed internal/administrative guidelines for adding and removing tax payers form the VAT Special Table for its staff. Further, that guidelines which have been communicated to the general public by the Respondents which he annexed and marked as “KRA-10”. The deponent averred that the argument that the Respondents’ VAT Special Table lacks legal backing by suspending Applicant’s rights without notice, hearing or review mechanism is thus misplaced. Further, that at no point has the 1st Respondent abandoned the VAT Act and Tax Procedures Act in favour of the VAT Special Table, but rather the 1st Respondent is exercising the powers conferred by, the VAT Act and the KRA Act. He stated that no evidence has been provided by the Applicant to prove that the VAT Special Table contravenes the Constitutional principles in Tax Administration.
27. He urged that the Applicant’s prayers do not meet the threshold for grant of such orders. In response to paragraphs 7-11 of the Applicant’s supporting affidavit, he urged that the Respondents reiterates that it is empowered by section 59 of the Tax Procedures Act to request for documents from the Applicant in the course of discharge of its statutory functions and doing so cannot be a reason to being dragged in the courts of law. Further, in response to paragraph 12-14, 17, 18 and 39 of the supporting affidavit, the Respondent stated that the Applicant was granted a fair and adequate opportunity to respond to the tax compliance issues before being placed in the VAT special table.
28. He deponed that the Applicant has not demonstrated how the Respondent’s discharge of its statutory is illegal or unreasonable. Further, that contrary to the Applicant’s assertions at paragraph 19 of its affidavit, the Respondent states that upon conclusion of its investigations, a tax demand was issued on 28th September 2025 which the Applicant is required to object to the demand as required by section 51(2) of the TPA. Additionally, that the issues the Applicant is raising at paragraphs 20, 36-42 ought to be raised through an objection to the demands issued rather than doing so before this Court. In response to paragraphs 25-27, 43-45 of the Applicant’s Supporting Affidavit, he urged that the Respondent’s actions were in line with its statutory mandate and it cannot be gagged as argued by the Applicant. In response to paragraphs 28-30 of the Applicant’s supporting affidavit, he urged that the Respondent affirmed its position that placement in VAT special table is supported by law.
29. The deponent averred that if the court grants the prayers sought, the likely party to suffer irreparable loss and immense prejudice would be the Respondents and the Government of Kenya which is likely to continue losing revenue through the various schemes which the VAT Special Table intends to curb. He urged that the public interest is for the denial of the prayers sought and prayed that the Application be dismissed.
Ex Parte Applicants’ Supplementary Affidavit
30. The Ex Parte Applicant filed a Supplementary Affidavit dated 5th February 2026, sworn by Rupaal Vithlani in response to the Replying Affidavit. In response to paragraph 5 to 10, he averred that it indeed shows that the Respondents have no authority and or power to make law, in fact the Respondents concede in paragraph 8 that they can only administer and enforce the provisions of the written laws as set out in Part I & Il of the First Schedule of the Kenya Revenue Act. Further, that he denied the contents of paragraph 13 which is denied, and stated that the Respondent relies on Regulation 9 of the VAT Regulations which was deleted by Legal Notice 188 of 2020. Additionally, that the ex parte Applicant at all times adhered to the VAT Act when filing their VAT returns as relates to Viostruct Global Ltd and supplied information and evidence and the same was annexed RV-3a, 3b and RV-4, in my supporting affidavit.
31. In response to paragraphs 13 to 18, he denied the contents thereof as untrue. Further, that paragraphs 19 to 28 are a regurgitation of legal provisions and not relevant to the issue at hand. He urged that the Respondent cites Section 36 of the VAT Act which is not relevant because; The section deals with cancellation of registration and the matter before the Honourable Court is not about cancellation of registration; the section deals with a registered person who ceases to make taxable supplies, if anything the Applicant was not a supplier in the transaction with Viostruct Global Ltd, it was Viostruct Global Ltd that was the supplier and the provision would therefore apply to them, the suppliers; that there has never been any notice by the Respondents on a cancellation as per Section 36 (3) as the same was not applicable and, that Section 36 (5) of the VAT Act is crystal clear that a cancellation can only happen on a registered person (supplier) who is no longer required to be registered. This is a fact that was never established neither is it relevant to this suit, but if the Respondents are to rely on the same, to which they should be estopped, they never adhered to the said provision.
a) A perusal of the guidelines does not show that the same are anchored under Section 36 of the VAT Act. The provision and reliance are only supported by the Respondents fecund and stretched imagination only meant to dupe this court. f) A cancellation process is not equal to the VAT Special Table and the same are not synonymous.
32. The deponent averred that the Respondents' reliance on Section 17(2) of TPA and 42 of the VAT Act is misplaced. That the Ex Parte Applicant is in possession of a valid tax invoice issued by the supplier (Viostruct Global Ltd) through the eTlMS system, fully compliant with statutory requirements. Further, that Section 17(3) of the VAT Act clearly and exhaustively sets out the documentation a taxpayer is required to furnish in support of an input tax claim, and once such compliance is achieved, input tax may not be disallowed. The Ex Parte Applicant fully complied with the said statutory requirements and supplied all relevant documents as prescribed thereunder. Despite this compliance and without any lawful basis, the Respondents arbitrarily place the ex parte Applicant on the VAT Special Table, thereby disabling it from filing its VAT returns and remitting taxes as required by law. This action was punitive, disproportionate and wholly unsupported by statute and amounts to an unlawful administrative sanction in disregard of the clear provisions of the VAT Act.
33. The deponent averred that they have at all times kept proper records, and books of accounting. Further, that paragraph 28 does not in any way come to the aid of the Respondents, as it merely outlines the statutory powers conferred upon the Cabinet Secretary under the relevant tax statutes. However, the purported VAT Special Table Guidelines constitute delegated legislation within the meaning of the Statutory Instruments Act, yet the same were neither made, prescribed, nor issued by the Cabinet Secretary as required in law, nor subjected to mandatory public participation, parliamentary scrutiny, or gazettement.
34. Similarly, that Article 109 of the Constitution is clear that parliament has the power of legislation. The impugned VAT Special Table guidelines are governed by the Statutory Instruments Act as the same fit the definition of a Statutory Instrument. The Respondents came up with tax guidelines without power, authority and importantly, without Parliament's scrutiny. That the VAT Special Table Guidelines ought to be declared void, the Respondents having failed to present said guidelines before Parliament within the prescribed timelines, as stipulated in the Statutory Instruments Act.
35. The deponent averred that paragraphs 29, 30, 31, 32, 33, 35, 36 and 37 are not applicable to the matter at hand and remain irrelevant. Further, that Section 14 of TPA which also deals with cancellation of PIN is not relevant as no party notified the commissioner of their intention to have their PIN cancelled, and that the VAT Special Table is not cancellation. He urged that paragraphs 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, and 51 are general lamentations not supported in fact and or law, neither are the same relevant this case, and denied the contents. Further that he opposed paragraphs 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 62, averring that the measures taken were illegal, unprocedural and not supported by any law.
36. The deponent stated that paragraphs 63, 64, 65, 66, 67 and 68 are irrelevant and do not show where the Respondents obtain the power to continue enforcing the VAT Special Table. Further that at paragraph 64 and 65 the Respondents concede that it was the supplier who was to have the tax liability and not the Ex Parte Applicant. Additionally, that the Respondents concede that indeed every registered person shall submit a return, in the prescribed form and manner, in respect of each tax not later than the twentieth day after the end of that period as per Section 44 of the VAT Act. However, upon being put on the VAT Special Table, the ex parte Applicant's PIN was suspended and it could not file its VAT returns. He reiterated that the Respondents do not show what gives them power and authority to suspend this important provision. A suspension is therefore illegal as returns must be filed monthly.
37. The deponent averred that the core issue in this dispute is the Respondents' contravention of tax laws by placing the ex parte Applicant on the VAT Special Table, an enforcement mechanism with no express grounding in statute. The deponent urged that from the facts of the case it was also unprocedural of Respondents to issue the demand notice of 28th October 2025 prior to issue a letter of findings, which would allow the taxpayer time and opportunity to respond to or counter the findings, therefore the demand letter itself was unfairly issued. Additionally, that even if we were to consider the guidelines as proper, the Respondents never adhered to the same, as a taxpayer is supposed to be given at least 7 days to respond to the Notice of Special Table, but this was not the case.
Ex Parte Applicants’ Submissions
38. Counsel for the Ex Parte Applicant identified the issues for determination and proceeded to submit on the same.
39. On whether the action of placing the ex parte Applicant under VAT Special Table was legal and lawful, Counsel urged that that the VAT Special Table is not a creature of law as contended by the Respondent. That it is not expressly anchored under the VAT Act or any other tax law. Further, that the Respondents continue to enforce this alien creature without legal backing, public participation, or transparency which is not only illegal but also a gross violation of taxpayers' constitutional rights. He urged that it is now trite law that every policy that affects the general public must be subjected to participatory safeguards. Counsel cited the case of Law Society of Kenya v National Assembly of Kenya & 3 others (2025)1 KEHC 5472 (KLR) and maintained that the VAT Special Table Guidelines remain unlawfully promulgated, procedurally improper and devoid of any legal force or effect. Further, that the Respondents knowing fully well the implications of a taxpayer being added into the VAT Special Table, they ought to have subjected such policy to public participation for the purposes of generating public input as opposed to imposing the same on taxpayers, arbitrarily.
40. Counsel urged that the ex parte Applicant does not refute that it ought to remit taxes and that it has in fact remained compliant in discharging its VAT obligations. However, it has a legitimate expectation that the taxes it remits must be governed by a detailed statutory law and not the discretion of the tax master. Further, that the implications of placing the ex parte Applicant on the VAT Special Table illegally, goes beyond tax compliance or enforcement issues. That the existing tax laws already provide robust legal and lawful tools to monitor compliance such as requesting for records, conducting audits and issuing assessments as envisaged by Section 58-61 of the Tax Procedures Act. He cited the case of Silver Chain Limited v Commissioner Income Tax & Others (2016) KEHC, Fleur Investments Limited v Commissioner of Domestic Taxes and another (2018) KECA 341 (KLR) and Republic v Commissioner of Domestic Taxes Exparte Sony Holdings Limited (2019) KEHC 11987 (KLR).
41. Counsel urged that the purported VAT Special Table Guidelines constitute delegated legislation within the meaning of the Statutory Instruments Act, yet the same were neither made, prescribed, nor issued by the Cabinet Secretary as required in law, nor subjected to mandatory public participation, parliamentary scrutiny, or gazettement. Consequently, the said. He maintained that the Respondents have failed to establish the tax law provision that creates the VAT Special Table.
42. Counsel urged that the unlawful nature of the VAT Special Table emanates from lack of legal framework and it continues to violate constitutional principles such as public participation under Article 10 and constitutional rights of Article 47, 50(2). That Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. He invited the court to interrogate the guidelines vis-a-vis the Statutory Instrument Act, urging that under the Act, a "statutory instrument" means any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued. Further, that it would therefore mean that the impugned VAT Special Table guidelines herein are governed by the Statutory Instruments Act as the same fit the definition of a Statutory Instrument.
43. Counsel submitted that the guidelines never complied with the provision as laid out under the Statutory Instruments Act for various reasons to wit; The Respondents never adhered to Section 4 as it shows the objective of the Act. No consultation was done, as the Respondents averred that the guidelines are an internal administrative guideline; Section 5 also delves into consultation in detail and indeed the Respondents failed and or neglected to adhere to this provision; Section 5A was also not adhered to as there is no explanatory memorandum; Part III was also not complied with when it comes to impact assessments; Part IV was equally not complied with as it required Parliamentary scrutiny in compliance with Article 109 of the Constitution; Section 22 (1) provides: every statutory instrument shall be published in the Kenya Gazette and shall be assigned a serial number as of the year in which it is made which shall be printed on the face of the statutory instrument. The guidelines are not compliant with this section, they remain to therefore have no legal effect, void, inoperative and unenforceable.
44. Counsel urged that the above non-compliance demonstrates how the Respondents came up with a guideline without power, authority and importantly, without Parliament's scrutiny. Counsel cited the case of Kenya
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