REVISITING THE 2019 CASE OF TAX JUSTICE NETWORK- AFRICA versus CABINET SECRETARY FOR NATIONAL TREASURY & 2 OTHERS

Abstract

The main focus of this review is on the 2019 ruling of the High court of Kenya: the case regarding the Double Taxation Agreement (DTA) between Kenya and Mauritius. This review explores how the decision on the constitutionality of the Kenya- Mauritius DTA by the Kenyan High Court has broad impacts on the ability of Kenya to mobilize the requisite resources required for development. The review delineates the role that tax treaties play in financing for development investigating both the positive and negative effects on countries ability to mobilize resources that countries should potentially consider as they enter into these agreements. The review explores specific provisions of the Mauritius-Kenya DTA revealing that in fact Kenya stands to lose plenty of taxable revenue if such a treaty were to enter into force. Lastly, the review delves into a critique of the decision of the Kenyan High court in this particular case setting out other best-case scenarios that the court could have explored in order to render the agreement unconstitutional.