As a bit of background, Mauritius and Kenya had signed a Double Taxation Agreement (“DTA”) in May 2012. On the 3rd October 2014, the Tax Justice Network Africa (“TJN-A”) filed a petition against the Kenya-Mauritius DTA whereby they had stated that the said DTA was unconstitutional for various reasons such as the lack of public participation in the DTA exercise, the lack of openness in the process and that the DTA was not for the benefit of Kenya.
On the 15th March 2019, the High Court of Kenya declared null and void the Kenya-Mauritius DTA due to a failure to table the legal notice. As per the Statutory Instruments Act 2013 (“SIA 2013”), the Cabinet Secretary in charge of Finance needs to table the legal notice to give effect to the DTA to the National Assembly.
The High Court of Kenya declared that the DTA was void because it was not tabled before Parliament within the time period required by the SIA 2013 and not due to the economic argument that has been raised by the TJN-A.
DTAs are important for countries as they ensure elimination of double taxation, establish trust in the tax system, promote foreign direct investment and consolidate the economic relationship between countries, for instance Kenya and Mauritius have a history of bilateral relations and a lot has been done to foster trade and investment between both countries To put in place the DTA Kenya- Mauritius, the Government of Kenya will have to publish a fresh Legal Notice in the Kenya Gazette, which will have to be tabled before the National Assembly as per the procedures and timelines stipulated in the SIA 2013.
The president of Kenya, Mr. Uhuru Kenyatta and his wife are in Mauritius for a State Visit until the 12th April 2019, for an important subject on regional maritime. The discussion on the DTA Kenya-Mauritius shall also be on the agenda.