A groundbreaking petition before the High Court is set to test the constitutionality of a key provision in Kenya’s tax regime, potentially reshaping how the Kenya Revenue Authority (KRA) conducts audits and assessments.
Dr. Magare Gikenyi has filed a suit challenging Section 56(1) of the Tax Procedures Act, which places the burden of proof squarely on taxpayers.
Under the current law, KRA assessments are presumed correct unless the taxpayer can disprove them, a mechanism Dr. Gikenyi argues effectively treats taxpayers as guilty until proven innocent.
“Article 50 of the Constitution guarantees that everyone is presumed innocent until proven otherwise,” Dr. Gikenyi’s petition states. “Section 56(1), in practice, flips this principle on its head, creating a situation where taxpayers must disprove KRA’s claims, however inflated or unfounded they may be.”Dr. Gikenyi further contends that the law has enabled KRA to issue “ridiculous” or exaggerated figures, placing an enormous burden on taxpayers to counter them with evidence. Critics say the presumption of correctness has long been a convenient shield for the Authority, hinging on the assumption that taxpayers alone hold all compliance information.
The petition is expected to draw attention not only from the judiciary but also from the National Assembly, which oversees the legislation. Legal experts suggest that the outcome could have far-reaching implications for taxpayer rights and KRA enforcement practices.
Comparative examples from jurisdictions such as Austria and France are being cited, where the burden of proof is placed on tax authorities to ensure fairness and prevent arbitrary assessments. Some observers are also pointing to Finland and Sweden, which operate under split-burden systems that balance responsibility between taxpayers and the tax authority.
The petition has generated keen interest among tax professionals and legal scholars, who say it could redefine the “presumption of correctness” doctrine in Kenya.
Tax practitioners and observers are now awaiting KRA’s response to the petition, as well as the position the National Assembly may take, given its role in enacting the law.
Many in the legal community note that the late Justice David Majanja, known for his sharp and analytical rulings, would have relished the case. The petition is expected to be a test of the constitutional principle of innocence, taxpayer rights, and the limits of administrative power.
