The High Court in Kakamega has dismissed a petition seeking to halt the implementation of a 12.5 per cent excise duty on the amount staked by persons participating in betting activities.
The petition, filed on August 21, 2023, sought to have several clauses of the Excise Duty Act, 2015, as amended by the Finance Act, 2023, scrapped. The Kenya Revenue Authority (KRA), the National Assembly and the Attorney General were named among the respondents
The petitioner, one Edward Okwama, argued that the imposition of a 12.5 per cent excise duty would amount to double taxation, as gamblers are also expected to remit 20 per cent withholding on their winnings.
As such, he had claimed that not subjecting the same requirement to similarly situated persons in the country was discriminatory and in contravention of Article 27 of the Constitution and therefore needed to be declared null and void.
However, when delivering his ruling, Justice Stephen Mbungi found that the clauses had not violated the Constitution and did not amount to double taxation as alleged by the petitioner.
"It is a cardinal principle of the law on interpretation of a statute that all the provisions of the statute should be read holistically but not in isolation," the judge ruled.
"It is my finding that Paragraph 4A of Part II of the First Schedule of the excise duty act of 2015 as amended by the Finance Act of 2023 is NOT in contravention of Article 2(4) of the Constitution, which provides that any law, including customary law, that is inconsistent with this constitution is void to the extent of the inconsistency."
He further argued that there was a discernible difference between the two taxes, claiming that the Gross Gaming Revenue under Section 29(a) of the Betting Lotteries and Gaming Act (Cap 131) is a distinct tax just like Excise Duty.
