Justice David Shikomera Majanja, who died last week, has been hailed as an intellectually astute judge.
Tributes flowing from all corners of the country, both within and outside the legal fraternity, painted Justice Majanja as a towering legal personality who yearned for transformative jurisprudence.
Some judges are known for their mechanical application in their decisions. But not Justice Majanja.
Chief Justice Martha Koome said that throughout her years of service at the High Court and the Judicial Service Commission (JSC), Justice Majanja was passionate about preserving the rule of law and ensuring the fair administration of justice.
"He dedicated his life to advancing these values, committed to applying the law fairly and impartially to ensure equal justice for all," she said.
The CJ added that Judge Majanja upheld the dream entrusted to him and made significant contributions to the cause of justice and the development of jurisprudence.
The judge was appointed to the High Court in 2011 and served as a judge in several court stations, including the Constitutional and Human Rights Division at Milimani, Homa Bay, Migori, Kisumu, and Kisii, before being moved back to the Commercial and Tax Division at Milimani.
At the time of his death, he was serving at the Milimani High Court Civil Division and had been re-elected for a second term as a JSC commissioner, representing the Kenya Judges and Magistrates Association.
During his stint at Milimani, Justice Majanja made many landmark decisions, as he never shied from speaking his mind through his rulings and judgments. Some of the groundbreaking decisions include in 2022 when he blocked the Kenya Revenue Authority (KRA) from demanding tax on tithes, donations, and offerings from places of worship.
In the judgment, Justice Majanja upheld a ruling of the Tax Appeals Tribunal, which barred the taxman from demanding tax from Thika Road Baptist Church.
Then, the taxman wanted the church to pay Sh5.5 million, arguing that it failed to produce a tax exemption certificate.
Organisations established solely to reduce poverty or distress or for the advancement of religion or education purposes are exempted from income tax.
The KRA argued before the High Court that the church must have a certificate of exemption if the income, in the form of tithes and donations, is to be exempted. The taxman said the certificate is not automatically issued but is subject to various conditions.
"I, therefore, find and hold that since tithes, offerings, and free will donations are not income-chargeable with income tax, the church didn't need to seek an exemption," Justice Majanja said.
According to the judge, KRA did not demonstrate that tithes, donations, and offerings are gains and profits, employment, or rights granted for the use of property or any other form of recognised income by the Income Tax Act.
Churches are required to file annual returns but are exempt from most taxes as provided for by sections 13 and paragraph 10 of the first schedule of the ITA and the Non-Governmental Organisations and Coordination Act.
The decision was a major relief to churches that collect hundreds of millions in tithes every year, as a win for KRA would have spelt doom and allowed the taxman to go after the big and established churches.
In 2012, the Treasury put churches on notice that they were the next in line to pay taxes for commercial activities that gave them an unfair advantage over other investors.
This is because some churches and charitable organisations are running businesses, which bring in more money, freeing them from over-reliance on tithes and offerings from members.
Some schools and hospitals run by churches, for instance, offer services at subsidised rates seeking to benefit the rural and urban poor.
In another blow to the KRA and a win for betting firms, Justice Majanja ruled that tax on winnings between 2018 and 2019 did not involve the amount wagered.
KRA had demanded billions from the betting firms as the taxman sought to tax both the amount wagered and the amount won as winnings.
However, Justice Majanja said the taxman's argument was ambiguous as the definition of winnings was not provided for in law then.
The taxman had hit the betting firms, including Betin, Betika, and SportPesa, with notices to pay billions as taxes due, and went ahead to freeze their bank accounts. The KRA had also shut down the trading account with Safaricom M-Pesa, which saw Betin cease operations.
Justice Majanja upheld the decision of the tax appeals tribunal made in 2019 that the taxman could not collect withholding tax that ought to have been deducted by KRA directly from the punters.
"Consequently, I, therefore, find and hold that during the subject years of 2018 and 2019, the commissioner could not collect the withholding tax that ought to have been deducted by the respondents from the punters and that all the commissioner could do was seek the same from the punters directly," said the judge.
In yet another setback to KRA, the judge nullified the VAT Regulations published in 2017, opening an avenue for taxpayers to seek tax refunds, which were declined based on the ruling.
Judge Majanja had ruled that the regulations were invalid because they were published by the KRA before Parliament considered them. The judge said the regulations ceased to have any effect immediately on the 8th day after failing to table the document before the National Assembly.
The VAT Regulations 2017 were gazetted on March 30, 2017, under provisions of Section 67 of the VAT Act 2013, which gives the Treasury minister the power to make regulations to effect the VAT Act.
The KRA defended the regulations, stating that they were approved by Parliament and became law. The taxman appealed against the decision.
It was not all doom for the taxman when they appeared before Justice Majanja, as the judge ruled that the burden of proving payment of taxes lies with the taxpayer.
The judge held that the burden of proof shifts to the taxpayer once KRA questions documents supplied by a trader.
The judge decided a tax dispute pitting KRA against Pearl Industries, which deals in fabrics. KRA was demanding Sh472 million from the firm for corporate tax and VAT between January 2012 and November 2017.
The judge, in a decision in 2022, ruled that a politician must demonstrate that the funds raised for the campaigns are utilised for that purpose.
In a blow to former Nairobi governor Evans Kidero, the judge allowed KRA to seize Sh423 million in his bank account after faulting him for failing to separate his account from the campaign kitty.
Dr Kidero, who has since appealed the decision, argued that the money was part of a kitty received from well-wishers and friends for his campaigns ahead of the 2013 General Election.
Justice Majanja said in the judgment that the taxpayer must demonstrate that the money received for political campaigns must be declared and used as such. He said any cash not declared as political campaign funds and used for political campaign purposes, will be considered income and, therefore, taxable.
Other decisions by Justice Majanja involve Crown Beverages Limited v MFI Document Solutions Ltd (2023) where he held that statutes should be interpreted in a manner that promotes access to justice.
In Kenya Bus Service Ltd & Another v Minister for Transport & 2 others (2012), Justice Majanja held that the mandatory 30-day notice of intention to sue the government is a violation of the right of access to justice and amounts to an unjustified limitation of a right within a democratic society.
In another case- Samura Engineering Ltd & Others v Kenya Revenue Authority (2012) where he recognized that the constitution had constitutionalised administrative actions and required that all exercise of public power be justified as complying with the law.
Justice Majanja also directed in the case Republic v SOM (2018) for the reform of the Penal Code given his findings that the detention of persons with mental health conditions at the pleasure of the President was unconstitutional, just to sample a few of his groundbreaking judicial pronouncements.
Justice Koome said in a statement that Justice Majanja fell ill on Monday, July 8, 2024, and was taken to the hospital, where he was scheduled for surgery on Wednesday.
"Although he successfully underwent surgery in the morning and was moved to the intensive care unit to recuperate, he unfortunately passed away last evening," said Justice Koome.
Justice Majanja graduated with a Master of Law (LLM) degree from the University of Pretoria and a Bachelor of Law from the University of Nairobi.
