KENYA: The Kenya/Mauritius DTA declared invalid – why?
VI. Conclusion
It is astounding to this writer that in the aftermath of the decision in TJN-A v KRA, the Petitioner chose to wave the victory flag, rather than challenge this problematic judgment in the Court of Appeal. It is difficult to see how a judgment that nullifies a Statutory Instrument intended to bring the DTAA Double Taxation Agreement (DTA), also known as a Double Taxation Treaty (or a Tax Treaty), is an international tax treaty between two or more countries that aims to prevent individuals or businesses from being taxed twice on the same income. With globalisation and the increase in cross-border economic activities, DTAs have become essential tools for promoting trade, investment, and... into effect, on the basis of a procedural error, and does not nullify the DTAA Double Taxation Agreement (DTA), also known as a Double Taxation Treaty (or a Tax Treaty), is an international tax treaty between two or more countries that aims to prevent individuals or businesses from being taxed twice on the same income. With globalisation and the increase in cross-border economic activities, DTAs have become essential tools for promoting trade, investment, and... itself, represents a “a win for Kenyans in keeping more revenues from bilateral treaties”. In fact, this judgment has introduced undesirable complexity by holding that double tax agreements are not treaties, and do not have to be ratified, a position that is untenable in light of the governing international law principles. Further, the Court failed to issue a definitive, or at least an indicative judgment, on how courts should approach constitutional challenges to substantive provisions of double tax treaties; such a judgment would have been very useful in similar cases in other developing countries in the Commonwealth. Finally, the judge missed an excellent opportunity to shape the emerging jurisprudence on public participation, in so farFunctional analysis is the cornerstone of transfer pricing and international tax compliance, ensuring that intercompany transactions adhere to the arm’s length principle. It evaluates the roles, contributions, and risk profiles of entities within a multinational enterprise (MNE) to determine how profits and costs should be allocated. This process ensures that related-party transactions reflect the pricing that independent enterprises would establish... as it applies to public finance legislation in general, and negotiation of double tax treaties in particular.
Daisy L.A. Ogembo – DPhil in Law, University of Oxford.
Post comment: The problem may lie in the fact that the judiciaries in some of the African jurisdictions are not experienced and qualified enough to deal with these complex issues. This is an area of great development that will require much education. The issues raised in the matter deserve better exposure and analysis. But one African court will not achieve this. Academics and related tax practitionersA Tax Advisor is a professional who provides specialised advice to individuals, businesses, and organisations on various tax-related matters. They play a crucial role in guiding clients through complex tax laws and ensuring compliance with the latest regulations while identifying opportunities for tax efficiency. Tax Advisors must stay updated on legislative changes and understand the impact of international tax treaties,... will need to analyse and publish much more on this area of development.
It took over 10 years of research and putting education out there with developments in analogous areas before a tax court threw out a SARSThe South African Revenue Service (SARS) is the official tax authority responsible for the administration and enforcement of tax laws in South Africa. It plays a crucial role in managing the country’s fiscal policy by collecting revenue, administering customs, and ensuring compliance with tax legislation. Established under the South African Revenue Service Act, No. 34 of 1997, SARS functions independently... assessment based on procedural transgressions without even considering the merits of the case:
