Introduction
1. Before the Court for determination is the Notice of Motion Application dated 14 th July, 2026 brought under Articles 22, 23, 47, 50, 159 and 165(3)(b),(6) & (7) of the Constitution, Rules 3, 4, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Application is supported by the Affidavit of, SULEKHA DUALE , a representative of the Petitioner.
2. The Petitioner’s Notice of Motion application seeks interim conservatory orders pending the hearing and determination of the Application , as follows:
a) Spent
b) Spent
c) THAT pending the hearing and determination of this Petition, which has already been given directions for its disposal, this Honourable Court be pleased to issue a conservatory order staying all further proceedings in Tax Appeals Tribunal Appeal No. TATC/E910/2025.
d) THAT the costs of this Application be provided for.
3. Through the Affidavit of Sulekha Duale , the Applicant raises the grounds that the Petitioner filed the present Petition challenging the constitutionality, legality, and validity of the Respondent's actions in relation to purported “self-assessment” returns for the years 2019 and 2020, and the Respondent's Objection Decision dated 25 th July 2025.
4. The petitioner contends that the respondent unlawfully accessed the Petitioner's iTax portal and fabricated the said purported "self-assessment" returns, thereby creating a fictitious tax liability which forms the entire substratum of Tax Appeals Tribunal Appeal No. TATC/E910/2025 and that while the Tribunal Appeal and this Petition arise from the same underlying unlawful assessments and conduct, the questions each forum is competent to determine are distinct in kind. According to the petitioner, the Tribunal derives its jurisdiction from the existence of the impugned tax assessments and the resulting Objection Decision while the present Petition directly challenges the constitutional validity of those foundational acts and should this Court ultimately declare the impugned purported self-assessment returns and the Objection Decision unconstitutional and void ab initio, the legal substratum upon which the Tribunal Appeal rests will necessarily be retrospectively extinguished.
5. He avers that this Court is vested with exclusive jurisdiction under Article 165(3)(b) of the Constitution to determine questions concerning the denial, violation, or infringement of fundamental rights and the constitutional validity of administrative action and the Tax Appeals Tribunal, being a creature of statute, has no jurisdiction to determine constitutional questions, grant declarations of unconstitutionality, or award constitutional remedies.
6. That the petitioner/applicant applied before the Tax Appeals Tribunal in Appeal No. TATC/E910/2025 for an order staying those proceedings pending the hearing and determination of this Constitutional Petition. That application was heard on 8th May 2026, and by its Ruling of 29th June 2026 the Tribunal did not determine it; instead, the Tribunal granted the Petitioner leave to file its Supplementary Statement of Facts within 7 days and fixed the matter for mention on 29th July 2026. This action in substance and effect, elected to advance the Appeal toward a substantive hearing without ever having addressed whether it ought to be stayed, and that the application for stay heard on 8th May 2026 has accordingly been overtaken by events and rendered moot. There is no longer any live application before the Tribunal capable of yielding the stay originally sought, and the Petitioner is left with no continuing recourse at the Tribunal in respect of it.
7. He further deposes that on 18th August 2023, this Honourable Court (Mabeya, J.) delivered Judgment in Income Tax Appeal No. E112 of 2021, declaring the Respondent's Objection Decision dated 6th April 2020 a nullity and deeming the Petitioner's objection to the additional/amended assessment for the years 2016 to 2018 allowed by operation of law as of 11th January 2020, and that no order staying that Judgment was ever issued. That the Respondent has now confirmed, in its Replying Affidavit sworn on 8th July 2026 in Income Tax Appeal No. E112 of 2021, that the nullified 2016–2018 assessments were vacated only on 6th July 2026 — thereby confirming that when the disputed 2019 and 2020 returns were generated the Respondent remained in continuing non-compliance with the Judgment of this Court.
8. That is the reason the Applicant filed the instant Petition and stay ought to be granted because if this Petition succeeds, the purported self-assessment returns and the Objection Decision founded thereon will be declared unconstitutional and void ab initio, with the effect that the entire substratum of Appeal No. TATC/E910/2025 will be retrospectively extinguished, and any further step the Tribunal takes in the meantime will have been taken on a foundation that never had legal existence. The continuation of those proceedings pending determination of this Petition therefore carries a real and substantial risk of rendering extensive judicial and party resources futile.
9. The Applicant states that this Court cannot, in the exercise of its constitutional mandate, permit a subordinate statutory tribunal to continue to progress a matter whose foundational legality is directly and presently under challenge before it, and whose own factual foundation is not even defended by the Respondent as genuine, particularly where irrespective of the procedural course taken before the Tribunal the question whether those proceedings ought to be stayed remains undetermined, and where the assessments in question are themselves a consequence of the Respondent's own unremedied default.
10. That if the stay is refused, the Tribunal proceedings will continue to advance, including at the mention set for 29th July 2026, before this Petition can be heard and determined, notwithstanding that the Petitioner's application for a stay before the Tribunal was overtaken by events and never determined on its merits.
The Respondents Replying Affidavit
11. The Application was opposed by the replying Affidavit sworn on 21 st July,2026 by one Erick Njoroge where he stated the chronology as follows; that Respondent conducted an audit on the Petitioner and established that the Petitioner was an income tax non-filer for the years 2019 to 2023, despite having declared VAT sales during the same period and that on 30th January 2025, the Respondent invited the petitioner to its offices through a notice to appear before the Commissioner, in order to discuss the reasons for their failure to file income tax returns as indicated. On 26th February 2025, the Respondent issued a reminder to the petitioner because there was no response of communication it had received regarding the notice it sent to the petitioner on 10th February, 2025. On 10th April 2025, the Respondent issued the petitioner with a pre-assessment notice, notifying the Petitioner of the intent to raise default assessments within 14 days from the date of the notice. On 24th April, 2025 the Respondent proceeded to initiate default assessments through the Default Assessment Module on iTax. However, upon completion and upload for the year 2019 and 2020, the assessments were reflected as Original - Self Assessments instead of default assessments and the Respondent halted the process of raising the subsequent years awaiting resolution of the error.
12. He deposes that on 16th June, 2025 the Respondent's officer escalated the issue to its IT department (DTDBTO) seeking to have the issue resolved and the Applicant lodged an objection on 27 th May 2025 and 4 th July 2025 in response to the default assessments raised by the Respondent therefore alleging that they have been denied the right to object is incorrect. That the Respondent issued an objection decision on 25 th July 2024 which forms the crux of the dispute before the Tax Appeals Tribunal which has the jurisdiction to hear and determine the objection decision before it, empowered by Section 12 of the Tax Appeals Tribunal Act 2013.
13. The Respondent avers that the Petitioner’s contention is that the Commissioner's default assessments reflected as original self-assessments instead of default assessments because of an iTax- error, which is purely a tax issue, which the Tribunal has the jurisdiction to determine. Therefore, staying the proceedings before the Tribunal has no legal basis and the application for stay is an abuse of the Court process and goes against the doctrine of exhaustion since this matter is before the Tax Appeals Tribunal as the Petitioner has not demonstrated any exceptional circumstances to warrant the High Court's interference with the Tribunal's powers not to determine a dispute that is properly before it.
14. The Respondent avers that Section 78(2) of the TPA provides that an assessment cannot be impeached on account of a mistake. The iTax error should not affect the validity of an assessment as provided under Section 78 of the Tax Procedures Act and the Court is invited to look at the intention of the Respondent, which was to issue a default assessment and that the Petitioner rightfully objected to the default assessment on 27 th May 2025 and 4 th July 2025 before the Tribunal as required under Section 51(2) of the Tax Procedures Act 2015. That the Petitioner's contention was that it was unable to object to the assessment since it reflected as a self-assessment as opposed to a default assessment, however the Tribunal vide a ruling of 29 th June 2026 allowed the Taxpayer leave to file supplementary statement of facts and additional documentation, curing the situation and it then begs the question why the Petitioner is hell bent on seeking to stay proceedings before the Tribunal when it has been granted an opportunity to present its case by providing all the relevant information.
15. He confirms that they have filed a preliminary objection filed on 26 th May 2026 challenging the jurisdiction of the Court. He deposes that the Court cannot grant the said orders sought in the application before the Preliminary objection is heard and determined. He further deposes that the Petitioner's application for stay of the Tribunal's Proceedings is premature because the High Court being a superior Court cannot be bound by the judgement of the Tribunal in the unlikely event the Court finds the Petition is merited.
16. The Respondent states that the Petitioner appears to be forum shopping since on 14 th May 2026 and 20 th April 2026 the Petitioner appeared before Justice Gikonyo and sought orders of stay of proceedings before the Tax Appeals Tribunal. That the Court declined to grant orders of stay of the proceedings of the Tribunal citing that staying proceedings was a serious order which cannot be granted without just cause, he therefore opposes the Application and asks for its dismissal with costs.
17. Directions were taken for parties to dispose of the application by way of written submissions.
18. The Applicants submissions are dated 14 th August, 2026 . The Applicant maintains that it is not asking the High Court to determine the merits of the tax dispute, which properly falls within the jurisdiction of the Tax Appeals Tribunal. Rather, the Petition raises anterior constitutional questions concerning, alleged unlawful access to the Applicant’s iTax portal, generation of purported “Original Self-Assessment” returns for 2019 and 2020 without the Applicant filing them, the Respondent’s alleged admission that the returns arose from a “system error” or “glitch” and the subsequent reliance on those returns to issue the Objection Decision and institute the Tribunal proceedings. The Applicant argues that if the impugned returns and Objection Decision are ultimately declared unconstitutional and void ab initio, the Tribunal proceedings would lose their legal foundation.
19. The Applicant addresses the Preliminary Objection raised by the Respondent based on section 9 of the Fair Administrative Action Act, arguing that the Applicant ought to exhaust the available statutory remedies. The Applicant contends that the Preliminary Objection does not prevent the Court from granting interim conservatory relief because; the Petition is brought under Articles 22, 23 and 165(3)(b) of the Constitution and is not an ordinary judicial review application under the FAAA, section 9 of the FAAA does not oust the High Court’s constitutional jurisdiction, even if the exhaustion requirement applies, section 9(4) FAAA permits exemption in exceptional circumstances and in the interests of justice and the circumstances are exceptional because the dispute concerns alleged unconstitutional conduct by a public authority and the circumstances in which the impugned tax returns were generated. The Applicant relies, inter alia, on Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 Others [2016] eKLR and Kenya Revenue Authority & 2 Others v Darasa Investments Ltd [2018] eKLR .
20. The Applicant summarizes the principles governing conservatory orders submitting that the application should be determined under the constitutional principles governing conservatory orders, rather than the ordinary principles applicable to interlocutory injunctions or stays. Reliance is placed principally on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR , where the Supreme Court characterized conservatory orders as public-law remedies intended to uphold constitutional values and the authority of the Court.
21. The Applicant also relies on Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR , identifying the relevant considerations as whether there is an arguable prima facie constitutional case, whether the order will advance constitutional values and rights, whether refusal of relief would render the Petition nugatory and whether public interest favours granting or refusing the order.
22. On whether the Application raises a prima facie case, the Applicant submits that the Petition raises serious constitutional questions concerning Articles 31, 40, 47, 48, 50 and 210(1) of the Constitution. He states that the alleged unlawful generation of the Applicant’s “self-assessment” returns is said to raise questions regarding; privacy ,property rights, fair administrative action, access to justice, fair hearing and the constitutional requirement that taxation be imposed only as authorised by legislation. The Applicant particularly relies on section 28 of the Tax Procedures Act, arguing that a self-assessment is a return “submitted” by the taxpayer, it contends that the Commissioner has no statutory power to generate a return purporting to be the taxpayer’s own self-assessment, that the Tribunal lacks jurisdiction to determine whether the Respondent violated fundamental constitutional rights. Those questions are said to be anterior to the tax dispute and fall within the High Court’s constitutional jurisdiction.
23. On the alleged disobedience of the earlier judgment as raised by the Respondent, judgment in Income Tax Appeal No. E112 of 2021, delivered by Mabeya J. on 18 August 2023, the Applicant states that the Court declared the Respondent’s Objection Decision concerning the 2016–2018 assessments a nullity and deemed the Applicant’s objection allowed. According to the Applicant, the Respondent failed to implement that judgment, with the nullified assessment remaining on the iTax system. As a result, when the Applicant attempted to file its 2019 and 2020 returns, the iTax system allegedly rejected the filings because of the continuing presence of the nullified assessment. The Applicant subsequently commenced contempt proceedings against named KRA officers, seeking removal of the assessment and technical enablement to file the 2019 and 2020 returns.
24. The Applicant therefore argues that its failure to file the 2019 and 2020 returns was not voluntary or deliberate, but was directly caused by the Respondent’s continued failure to implement the earlier judgment. They also points out that a taxed costs award of Kshs. 760,948/ = arising from the earlier proceedings allegedly remains unpaid.
25. The Applicant argues that the Respondent’s description of the returns as “Original Self-Assessments” was legally significant, according to the Applicant a self-assessment under section 28 TPA represents the taxpayer’s own determination, a default assessment under section 29 is imposed by the Commissioner and is subject to specific statutory safeguards and the Respondent’s own evidence indicates that it intended to generate default assessments but the system instead reflected them as “Original Self-Assessments” because of a system error. The Applicant contends that this was not merely a technical error because the different classification had different legal and procedural consequences, including affecting the manner in which the Applicant could challenge the assessment.
26. The Applicant states that the Respondent relies on section 78(2) TPA, arguing that an assessment should not be impeached merely because of a mistake. The Applicant rejects that argument on grounds that ;the alleged error was not a mere clerical or formal defect, the Respondent substituted one statutory category of assessment for another, a self-assessment can only be made by the taxpayer, if the Commissioner had no power to generate a self-assessment, the act was outside the Commissioner’s statutory powers, therefore, Section 78(2) cannot cure an alleged violation of constitutional rights and the provision cannot validate an assessment that was invokes the principle that a person cannot benefit from their own wrong, citing Kanyana v Ndunyu & 2 Others [2024] KEELC 6715 (KLR).
27. The Applicant also submits that the Tribunal proceedings derive their existence from the self-assessments, the objection decision and the appeal and since the constitutional validity of the first two acts is directly before the High Court, the Tribunal proceedings allegedly have no independent juridical foundation.
28. Reliance is placed on; Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR , Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 , and K ihanya & 4 Others v Gichuri & Another [2024] KECA 852 (KLR) contending that if the High Court finds the foundational administrative acts unconstitutional, the Tribunal proceedings would collapse with them.
29. The Applicant argues that denying conservatory relief would substantially undermine the Petition because the Tribunal would continue hearing a dispute founded on the very acts whose constitutional validity is under challenge. That if the Petition ultimately succeeds, judicial time will already have been expended, public and private resources will have been wasted, the Applicant will have incurred legal costs, the Tribunal proceedings may retrospectively be found to have rested on void acts and the constitutional proceedings would become largely retrospective rather than protective.
30. The Applicant emphasizes that Tribunal proceedings do not ordinarily result in recovery of costs by a successful party, making the expenditure potentially irrecoverable. Conversely, the Respondent allegedly suffers little or no prejudice from a temporary stay because, if the Petition fails, the Tribunal proceedings can resume from the stage at which they were stayed.
31. The Applicant submits that public interest strongly favours conservatory relief because the matter concerns, constitutional governance, the rule of law, accountability of public officers, lawful exercise of statutory power, compliance with court judgments and integrity of the tax administration system, that efficient tax collection cannot justify unconstitutional or unlawful exercise of public power and that public confidence in the tax system requires KRA to exercise its powers lawfully and in compliance with court orders.
32. In the alternative, the Applicant submits that even if ordinary stay principles apply, the balance of convenience favours a stay. It relies on Global Tours & Travels Ltd, Nairobi HC Winding Up Cause No. 43 of 2000 and Kenya Wildlife Service v James Mutembei [2019] eKLR , while acknowledging that stays of proceedings should be granted sparingly and only in exceptional circumstances.
33. The Applicant argues that this is an exceptional case because; the Tribunal proceedings are founded on acts under constitutional challenge, the Respondent's conduct in the earlier proceedings allegedly contributed directly to the circumstances giving rise to the present dispute, the Respondent loses no substantive rights through a temporary stay, no evidence or limitation period will be lost and the Tribunal proceedings can resume if the Petition fails.
34. On forum shopping allegations, the Respondent alleges that the Applicant is forum shopping, having previously sought a stay before Gikonyo J. The Applicant denies this, explaining that the earlier proceedings were in HCCOMMITA/E112/2021 , concerning contempt arising from the Respondent’s failure to comply with the earlier judgment relating to the 2016–2018 assessments. The present Petition, HCCHRPET/E604/2025 , concerns the separate 2019–2020 assessments and alleged constitutional violations.
35. The Applicant therefore argues that the two applications involved; different proceedings, different assessments, different legal wrongs and different factual and constitutional questions. It further notes that the earlier matter was recorded as settled and closed on 15 July 2026, and therefore cannot constitute a determination of the present application.
36. The Applicant rejects the Respondent’s allegation that it is deliberately delaying the Tribunal proceedings. It states that, following substantial resolution of the earlier iTax obstruction, it has filed its 2019 audited financial statements and intends to file the outstanding returns promptly and this should demonstrate that the Applicant is acting in good faith and is not seeking conservatory relief merely to evade its tax obligations. They therefore that the Court allow the Notice of Motion dated 14 July 2026 and grant conservatory orders staying the Tribunal proceedings pending determination of the Petition, with costs.
Analysis and Determination
37. Before I proceed to list the issues for determination, I must appreciate that this application seeking stay of proceedings in TAX APPEAL TRIBUNAL APPEAL NO. TATC/E910/2025, has been filed after directions on the main petition and the Preliminary Objection were given .The preliminary objection questions the Jurisdiction of this court to hear and determine the Petition and the Petition seeks declarations against the Respondent for their actions which eventually led to the appeal in TAX APPEAL TRIBUNAL APPEAL NO. TATC/E910/2025, filed by the Petitioner/Applicant.
38. With the jurisdiction of this court having been questioned, it would be amiss for me to proceed to make any orders in the application without addressing it first. I therefore believe that the issues for determination should be as follows:
a) Whether the Preliminary Objection founded on section 9 of the Fair Administrative Action Act bars this Court from hearing and determining the Notice of Motion for conservatory orders.
b) Whether the Applicant has established a prima facie constitutional case warranting the grant of conservatory orders.
39. On the first issue raised by the Respondent in the Preliminary Objection dated 28 th May,2026, for want of jurisdiction, we take it from the often cited case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, wherein it was expressed inter alia as follows;
“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the action and matters of which the particular court has cognizance of or as to the area over which the jurisdiction shall extend; or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal has been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.”
40. The Supreme Court in Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 Others Application No. 2 of 2011 [2012]eKLR stated ,
“A court’s jurisdiction flows from the Constitution or legislation or both. Thus a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law.”
41. In Adero & Another versus Ulinzi Sacco Society Limited [2002] 1KLR 577 , the court expressed itself that: (i) jurisdiction either exists or does not abinitio; (ii) jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction; and (iii) jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.
42. The respondent’s reason of raising the issue of want of jurisdiction are founded on sections and 9(1) and (2) of the Fair Administrative Action Act of 2015.
43. Section 9 of the Fair Administrative Action Act provides as follows:-
9(1)subject to subsection (2) a person who is aggrieved by an administrative action, may, without unreasonable delay apply for judicial review of any administrative action to the high court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
1) The high court or a subordinate court under subsection (1) shall not render an administrative action or decision under this Act unless the mechanism including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
2) The high court or subordinate court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
3)Notwithstanding subsection(3), the high court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
4) A person aggrieved by an order made in the exercise of judicial review jurisdiction of the high court may appeal to the court of appeal.
44. In the case of Peter Muturi Njuguna vs. Kenya Wildlife Service [2017] eKLR the court restated the principles on exhaustion of existing procedures as follows:
“The issue of exhausting specific procedure has been considered at length by this Court as well as the High Court in many decisions. In The Speaker of the National Assembly -vs- Karume [2008] 1 KLR 426 (EP), this Court stated that, where there is a specific procedure provided for redress of grievances, that procedure ought to be strictly followed. Similarly in Kimani Wanyoike -vs- Electoral Commission Civil Appeal No. 213 of 1995 (UR) which was decided before the cause of action in this matter arose, the Court held:-
“Where there is a law prescribed by either a constitution or an act of Parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed”.
45. The rationale was further explored in the case of Diana Kethi Kilonzo -vs- IEBC and 2 Others [2013] eKLR as follows:
“We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities.”
46. It is not disputed that the Applicant herein filed the Appeal TAX APPEAL TRIBUNAL APPEAL NO. TATC/E910/2025 , or that he already sought stay of proceedings, similar and almost verbatim to this application, in the Tax Appeal tribunal and before Justice Gikonyo J., where the application was disallowed, before they then approached this court.
47. Section 9 of the Fair Administrative Action Act provides indicates that courts are obligated to hold off hearing and determining matters for which alternative dispute resolution mechanisms have been provided. It is only after the alternative mechanisms and remedies have been exhausted that the courts should engage in the matters. This position of
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1. Before the Court for determination is the Notice of Motion Application dated 14 th July, 2026 brought under Articles 22, 23, 47, 50, 159 and 165(3)(b),(6) & (7) of the Constitution, Rules 3, 4, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Application is supported by the Affidavit of, SULEKHA DUALE , a representative of the Petitioner.
2. The Petitioner’s Notice of Motion application seeks interim conservatory orders pending the hearing and determination of the Application , as follows:
a) Spent
b) Spent
c) THAT pending the hearing and determination of this Petition, which has already been given directions for its disposal, this Honourable Court be pleased to issue a conservatory order staying all further proceedings in Tax Appeals Tribunal Appeal No. TATC/E910/2025.
d) THAT the costs of this Application be provided for.
3. Through the Affidavit of Sulekha Duale , the Applicant raises the grounds that the Petitioner filed the present Petition challenging the constitutionality, legality, and validity of the Respondent's actions in relation to purported “self-assessment” returns for the years 2019 and 2020, and the Respondent's Objection Decision dated 25 th July 2025.
4. The petitioner contends that the respondent unlawfully accessed the Petitioner's iTax portal and fabricated the said purported "self-assessment" returns, thereby creating a fictitious tax liability which forms the entire substratum of Tax Appeals Tribunal Appeal No. TATC/E910/2025 and that while the Tribunal Appeal and this Petition arise from the same underlying unlawful assessments and conduct, the questions each forum is competent to determine are distinct in kind. According to the petitioner, the Tribunal derives its jurisdiction from the existence of the impugned tax assessments and the resulting Objection Decision while the present Petition directly challenges the constitutional validity of those foundational acts and should this Court ultimately declare the impugned purported self-assessment returns and the Objection Decision unconstitutional and void ab initio, the legal substratum upon which the Tribunal Appeal rests will necessarily be retrospectively extinguished.
5. He avers that this Court is vested with exclusive jurisdiction under Article 165(3)(b) of the Constitution to determine questions concerning the denial, violation, or infringement of fundamental rights and the constitutional validity of administrative action and the Tax Appeals Tribunal, being a creature of statute, has no jurisdiction to determine constitutional questions, grant declarations of unconstitutionality, or award constitutional remedies.
6. That the petitioner/applicant applied before the Tax Appeals Tribunal in Appeal No. TATC/E910/2025 for an order staying those proceedings pending the hearing and determination of this Constitutional Petition. That application was heard on 8th May 2026, and by its Ruling of 29th June 2026 the Tribunal did not determine it; instead, the Tribunal granted the Petitioner leave to file its Supplementary Statement of Facts within 7 days and fixed the matter for mention on 29th July 2026. This action in substance and effect, elected to advance the Appeal toward a substantive hearing without ever having addressed whether it ought to be stayed, and that the application for stay heard on 8th May 2026 has accordingly been overtaken by events and rendered moot. There is no longer any live application before the Tribunal capable of yielding the stay originally sought, and the Petitioner is left with no continuing recourse at the Tribunal in respect of it.
7. He further deposes that on 18th August 2023, this Honourable Court (Mabeya, J.) delivered Judgment in Income Tax Appeal No. E112 of 2021, declaring the Respondent's Objection Decision dated 6th April 2020 a nullity and deeming the Petitioner's objection to the additional/amended assessment for the years 2016 to 2018 allowed by operation of law as of 11th January 2020, and that no order staying that Judgment was ever issued. That the Respondent has now confirmed, in its Replying Affidavit sworn on 8th July 2026 in Income Tax Appeal No. E112 of 2021, that the nullified 2016–2018 assessments were vacated only on 6th July 2026 — thereby confirming that when the disputed 2019 and 2020 returns were generated the Respondent remained in continuing non-compliance with the Judgment of this Court.
8. That is the reason the Applicant filed the instant Petition and stay ought to be granted because if this Petition succeeds, the purported self-assessment returns and the Objection Decision founded thereon will be declared unconstitutional and void ab initio, with the effect that the entire substratum of Appeal No. TATC/E910/2025 will be retrospectively extinguished, and any further step the Tribunal takes in the meantime will have been taken on a foundation that never had legal existence. The continuation of those proceedings pending determination of this Petition therefore carries a real and substantial risk of rendering extensive judicial and party resources futile.
9. The Applicant states that this Court cannot, in the exercise of its constitutional mandate, permit a subordinate statutory tribunal to continue to progress a matter whose foundational legality is directly and presently under challenge before it, and whose own factual foundation is not even defended by the Respondent as genuine, particularly where irrespective of the procedural course taken before the Tribunal the question whether those proceedings ought to be stayed remains undetermined, and where the assessments in question are themselves a consequence of the Respondent's own unremedied default.
10. That if the stay is refused, the Tribunal proceedings will continue to advance, including at the mention set for 29th July 2026, before this Petition can be heard and determined, notwithstanding that the Petitioner's application for a stay before the Tribunal was overtaken by events and never determined on its merits.
The Respondents Replying Affidavit
11. The Application was opposed by the replying Affidavit sworn on 21 st July,2026 by one Erick Njoroge where he stated the chronology as follows; that Respondent conducted an audit on the Petitioner and established that the Petitioner was an income tax non-filer for the years 2019 to 2023, despite having declared VAT sales during the same period and that on 30th January 2025, the Respondent invited the petitioner to its offices through a notice to appear before the Commissioner, in order to discuss the reasons for their failure to file income tax returns as indicated. On 26th February 2025, the Respondent issued a reminder to the petitioner because there was no response of communication it had received regarding the notice it sent to the petitioner on 10th February, 2025. On 10th April 2025, the Respondent issued the petitioner with a pre-assessment notice, notifying the Petitioner of the intent to raise default assessments within 14 days from the date of the notice. On 24th April, 2025 the Respondent proceeded to initiate default assessments through the Default Assessment Module on iTax. However, upon completion and upload for the year 2019 and 2020, the assessments were reflected as Original - Self Assessments instead of default assessments and the Respondent halted the process of raising the subsequent years awaiting resolution of the error.
12. He deposes that on 16th June, 2025 the Respondent's officer escalated the issue to its IT department (DTDBTO) seeking to have the issue resolved and the Applicant lodged an objection on 27 th May 2025 and 4 th July 2025 in response to the default assessments raised by the Respondent therefore alleging that they have been denied the right to object is incorrect. That the Respondent issued an objection decision on 25 th July 2024 which forms the crux of the dispute before the Tax Appeals Tribunal which has the jurisdiction to hear and determine the objection decision before it, empowered by Section 12 of the Tax Appeals Tribunal Act 2013.
13. The Respondent avers that the Petitioner’s contention is that the Commissioner's default assessments reflected as original self-assessments instead of default assessments because of an iTax- error, which is purely a tax issue, which the Tribunal has the jurisdiction to determine. Therefore, staying the proceedings before the Tribunal has no legal basis and the application for stay is an abuse of the Court process and goes against the doctrine of exhaustion since this matter is before the Tax Appeals Tribunal as the Petitioner has not demonstrated any exceptional circumstances to warrant the High Court's interference with the Tribunal's powers not to determine a dispute that is properly before it.
14. The Respondent avers that Section 78(2) of the TPA provides that an assessment cannot be impeached on account of a mistake. The iTax error should not affect the validity of an assessment as provided under Section 78 of the Tax Procedures Act and the Court is invited to look at the intention of the Respondent, which was to issue a default assessment and that the Petitioner rightfully objected to the default assessment on 27 th May 2025 and 4 th July 2025 before the Tribunal as required under Section 51(2) of the Tax Procedures Act 2015. That the Petitioner's contention was that it was unable to object to the assessment since it reflected as a self-assessment as opposed to a default assessment, however the Tribunal vide a ruling of 29 th June 2026 allowed the Taxpayer leave to file supplementary statement of facts and additional documentation, curing the situation and it then begs the question why the Petitioner is hell bent on seeking to stay proceedings before the Tribunal when it has been granted an opportunity to present its case by providing all the relevant information.
15. He confirms that they have filed a preliminary objection filed on 26 th May 2026 challenging the jurisdiction of the Court. He deposes that the Court cannot grant the said orders sought in the application before the Preliminary objection is heard and determined. He further deposes that the Petitioner's application for stay of the Tribunal's Proceedings is premature because the High Court being a superior Court cannot be bound by the judgement of the Tribunal in the unlikely event the Court finds the Petition is merited.
16. The Respondent states that the Petitioner appears to be forum shopping since on 14 th May 2026 and 20 th April 2026 the Petitioner appeared before Justice Gikonyo and sought orders of stay of proceedings before the Tax Appeals Tribunal. That the Court declined to grant orders of stay of the proceedings of the Tribunal citing that staying proceedings was a serious order which cannot be granted without just cause, he therefore opposes the Application and asks for its dismissal with costs.
17. Directions were taken for parties to dispose of the application by way of written submissions.
18. The Applicants submissions are dated 14 th August, 2026 . The Applicant maintains that it is not asking the High Court to determine the merits of the tax dispute, which properly falls within the jurisdiction of the Tax Appeals Tribunal. Rather, the Petition raises anterior constitutional questions concerning, alleged unlawful access to the Applicant’s iTax portal, generation of purported “Original Self-Assessment” returns for 2019 and 2020 without the Applicant filing them, the Respondent’s alleged admission that the returns arose from a “system error” or “glitch” and the subsequent reliance on those returns to issue the Objection Decision and institute the Tribunal proceedings. The Applicant argues that if the impugned returns and Objection Decision are ultimately declared unconstitutional and void ab initio, the Tribunal proceedings would lose their legal foundation.
19. The Applicant addresses the Preliminary Objection raised by the Respondent based on section 9 of the Fair Administrative Action Act, arguing that the Applicant ought to exhaust the available statutory remedies. The Applicant contends that the Preliminary Objection does not prevent the Court from granting interim conservatory relief because; the Petition is brought under Articles 22, 23 and 165(3)(b) of the Constitution and is not an ordinary judicial review application under the FAAA, section 9 of the FAAA does not oust the High Court’s constitutional jurisdiction, even if the exhaustion requirement applies, section 9(4) FAAA permits exemption in exceptional circumstances and in the interests of justice and the circumstances are exceptional because the dispute concerns alleged unconstitutional conduct by a public authority and the circumstances in which the impugned tax returns were generated. The Applicant relies, inter alia, on Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 Others [2016] eKLR and Kenya Revenue Authority & 2 Others v Darasa Investments Ltd [2018] eKLR .
20. The Applicant summarizes the principles governing conservatory orders submitting that the application should be determined under the constitutional principles governing conservatory orders, rather than the ordinary principles applicable to interlocutory injunctions or stays. Reliance is placed principally on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR , where the Supreme Court characterized conservatory orders as public-law remedies intended to uphold constitutional values and the authority of the Court.
21. The Applicant also relies on Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR , identifying the relevant considerations as whether there is an arguable prima facie constitutional case, whether the order will advance constitutional values and rights, whether refusal of relief would render the Petition nugatory and whether public interest favours granting or refusing the order.
22. On whether the Application raises a prima facie case, the Applicant submits that the Petition raises serious constitutional questions concerning Articles 31, 40, 47, 48, 50 and 210(1) of the Constitution. He states that the alleged unlawful generation of the Applicant’s “self-assessment” returns is said to raise questions regarding; privacy ,property rights, fair administrative action, access to justice, fair hearing and the constitutional requirement that taxation be imposed only as authorised by legislation. The Applicant particularly relies on section 28 of the Tax Procedures Act, arguing that a self-assessment is a return “submitted” by the taxpayer, it contends that the Commissioner has no statutory power to generate a return purporting to be the taxpayer’s own self-assessment, that the Tribunal lacks jurisdiction to determine whether the Respondent violated fundamental constitutional rights. Those questions are said to be anterior to the tax dispute and fall within the High Court’s constitutional jurisdiction.
23. On the alleged disobedience of the earlier judgment as raised by the Respondent, judgment in Income Tax Appeal No. E112 of 2021, delivered by Mabeya J. on 18 August 2023, the Applicant states that the Court declared the Respondent’s Objection Decision concerning the 2016–2018 assessments a nullity and deemed the Applicant’s objection allowed. According to the Applicant, the Respondent failed to implement that judgment, with the nullified assessment remaining on the iTax system. As a result, when the Applicant attempted to file its 2019 and 2020 returns, the iTax system allegedly rejected the filings because of the continuing presence of the nullified assessment. The Applicant subsequently commenced contempt proceedings against named KRA officers, seeking removal of the assessment and technical enablement to file the 2019 and 2020 returns.
24. The Applicant therefore argues that its failure to file the 2019 and 2020 returns was not voluntary or deliberate, but was directly caused by the Respondent’s continued failure to implement the earlier judgment. They also points out that a taxed costs award of Kshs. 760,948/ = arising from the earlier proceedings allegedly remains unpaid.
25. The Applicant argues that the Respondent’s description of the returns as “Original Self-Assessments” was legally significant, according to the Applicant a self-assessment under section 28 TPA represents the taxpayer’s own determination, a default assessment under section 29 is imposed by the Commissioner and is subject to specific statutory safeguards and the Respondent’s own evidence indicates that it intended to generate default assessments but the system instead reflected them as “Original Self-Assessments” because of a system error. The Applicant contends that this was not merely a technical error because the different classification had different legal and procedural consequences, including affecting the manner in which the Applicant could challenge the assessment.
26. The Applicant states that the Respondent relies on section 78(2) TPA, arguing that an assessment should not be impeached merely because of a mistake. The Applicant rejects that argument on grounds that ;the alleged error was not a mere clerical or formal defect, the Respondent substituted one statutory category of assessment for another, a self-assessment can only be made by the taxpayer, if the Commissioner had no power to generate a self-assessment, the act was outside the Commissioner’s statutory powers, therefore, Section 78(2) cannot cure an alleged violation of constitutional rights and the provision cannot validate an assessment that was invokes the principle that a person cannot benefit from their own wrong, citing Kanyana v Ndunyu & 2 Others [2024] KEELC 6715 (KLR).
27. The Applicant also submits that the Tribunal proceedings derive their existence from the self-assessments, the objection decision and the appeal and since the constitutional validity of the first two acts is directly before the High Court, the Tribunal proceedings allegedly have no independent juridical foundation.
28. Reliance is placed on; Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR , Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 , and K ihanya & 4 Others v Gichuri & Another [2024] KECA 852 (KLR) contending that if the High Court finds the foundational administrative acts unconstitutional, the Tribunal proceedings would collapse with them.
29. The Applicant argues that denying conservatory relief would substantially undermine the Petition because the Tribunal would continue hearing a dispute founded on the very acts whose constitutional validity is under challenge. That if the Petition ultimately succeeds, judicial time will already have been expended, public and private resources will have been wasted, the Applicant will have incurred legal costs, the Tribunal proceedings may retrospectively be found to have rested on void acts and the constitutional proceedings would become largely retrospective rather than protective.
30. The Applicant emphasizes that Tribunal proceedings do not ordinarily result in recovery of costs by a successful party, making the expenditure potentially irrecoverable. Conversely, the Respondent allegedly suffers little or no prejudice from a temporary stay because, if the Petition fails, the Tribunal proceedings can resume from the stage at which they were stayed.
31. The Applicant submits that public interest strongly favours conservatory relief because the matter concerns, constitutional governance, the rule of law, accountability of public officers, lawful exercise of statutory power, compliance with court judgments and integrity of the tax administration system, that efficient tax collection cannot justify unconstitutional or unlawful exercise of public power and that public confidence in the tax system requires KRA to exercise its powers lawfully and in compliance with court orders.
32. In the alternative, the Applicant submits that even if ordinary stay principles apply, the balance of convenience favours a stay. It relies on Global Tours & Travels Ltd, Nairobi HC Winding Up Cause No. 43 of 2000 and Kenya Wildlife Service v James Mutembei [2019] eKLR , while acknowledging that stays of proceedings should be granted sparingly and only in exceptional circumstances.
33. The Applicant argues that this is an exceptional case because; the Tribunal proceedings are founded on acts under constitutional challenge, the Respondent's conduct in the earlier proceedings allegedly contributed directly to the circumstances giving rise to the present dispute, the Respondent loses no substantive rights through a temporary stay, no evidence or limitation period will be lost and the Tribunal proceedings can resume if the Petition fails.
34. On forum shopping allegations, the Respondent alleges that the Applicant is forum shopping, having previously sought a stay before Gikonyo J. The Applicant denies this, explaining that the earlier proceedings were in HCCOMMITA/E112/2021 , concerning contempt arising from the Respondent’s failure to comply with the earlier judgment relating to the 2016–2018 assessments. The present Petition, HCCHRPET/E604/2025 , concerns the separate 2019–2020 assessments and alleged constitutional violations.
35. The Applicant therefore argues that the two applications involved; different proceedings, different assessments, different legal wrongs and different factual and constitutional questions. It further notes that the earlier matter was recorded as settled and closed on 15 July 2026, and therefore cannot constitute a determination of the present application.
36. The Applicant rejects the Respondent’s allegation that it is deliberately delaying the Tribunal proceedings. It states that, following substantial resolution of the earlier iTax obstruction, it has filed its 2019 audited financial statements and intends to file the outstanding returns promptly and this should demonstrate that the Applicant is acting in good faith and is not seeking conservatory relief merely to evade its tax obligations. They therefore that the Court allow the Notice of Motion dated 14 July 2026 and grant conservatory orders staying the Tribunal proceedings pending determination of the Petition, with costs.
Analysis and Determination
37. Before I proceed to list the issues for determination, I must appreciate that this application seeking stay of proceedings in TAX APPEAL TRIBUNAL APPEAL NO. TATC/E910/2025, has been filed after directions on the main petition and the Preliminary Objection were given .The preliminary objection questions the Jurisdiction of this court to hear and determine the Petition and the Petition seeks declarations against the Respondent for their actions which eventually led to the appeal in TAX APPEAL TRIBUNAL APPEAL NO. TATC/E910/2025, filed by the Petitioner/Applicant.
38. With the jurisdiction of this court having been questioned, it would be amiss for me to proceed to make any orders in the application without addressing it first. I therefore believe that the issues for determination should be as follows:
a) Whether the Preliminary Objection founded on section 9 of the Fair Administrative Action Act bars this Court from hearing and determining the Notice of Motion for conservatory orders.
b) Whether the Applicant has established a prima facie constitutional case warranting the grant of conservatory orders.
39. On the first issue raised by the Respondent in the Preliminary Objection dated 28 th May,2026, for want of jurisdiction, we take it from the often cited case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, wherein it was expressed inter alia as follows;
“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the action and matters of which the particular court has cognizance of or as to the area over which the jurisdiction shall extend; or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal has been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.”
40. The Supreme Court in Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 Others Application No. 2 of 2011 [2012]eKLR stated ,
“A court’s jurisdiction flows from the Constitution or legislation or both. Thus a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law.”
41. In Adero & Another versus Ulinzi Sacco Society Limited [2002] 1KLR 577 , the court expressed itself that: (i) jurisdiction either exists or does not abinitio; (ii) jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction; and (iii) jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.
42. The respondent’s reason of raising the issue of want of jurisdiction are founded on sections and 9(1) and (2) of the Fair Administrative Action Act of 2015.
43. Section 9 of the Fair Administrative Action Act provides as follows:-
9(1)subject to subsection (2) a person who is aggrieved by an administrative action, may, without unreasonable delay apply for judicial review of any administrative action to the high court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
1) The high court or a subordinate court under subsection (1) shall not render an administrative action or decision under this Act unless the mechanism including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
2) The high court or subordinate court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
3)Notwithstanding subsection(3), the high court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
4) A person aggrieved by an order made in the exercise of judicial review jurisdiction of the high court may appeal to the court of appeal.
44. In the case of Peter Muturi Njuguna vs. Kenya Wildlife Service [2017] eKLR the court restated the principles on exhaustion of existing procedures as follows:
“The issue of exhausting specific procedure has been considered at length by this Court as well as the High Court in many decisions. In The Speaker of the National Assembly -vs- Karume [2008] 1 KLR 426 (EP), this Court stated that, where there is a specific procedure provided for redress of grievances, that procedure ought to be strictly followed. Similarly in Kimani Wanyoike -vs- Electoral Commission Civil Appeal No. 213 of 1995 (UR) which was decided before the cause of action in this matter arose, the Court held:-
“Where there is a law prescribed by either a constitution or an act of Parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed”.
45. The rationale was further explored in the case of Diana Kethi Kilonzo -vs- IEBC and 2 Others [2013] eKLR as follows:
“We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities.”
46. It is not disputed that the Applicant herein filed the Appeal TAX APPEAL TRIBUNAL APPEAL NO. TATC/E910/2025 , or that he already sought stay of proceedings, similar and almost verbatim to this application, in the Tax Appeal tribunal and before Justice Gikonyo J., where the application was disallowed, before they then approached this court.
47. Section 9 of the Fair Administrative Action Act provides indicates that courts are obligated to hold off hearing and determining matters for which alternative dispute resolution mechanisms have been provided. It is only after the alternative mechanisms and remedies have been exhausted that the courts should engage in the matters. This position of
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