Our law has many obligations and duties on its people. But also, therein are benefits which remain esoteric as few people get to know about them.
Those in the society with disabilities of various kinds, types and degrees are entitled to total tax exemptions. Only if they knew and only if it is not a loophole for abuse by those that don’t deserve.
Both local and international law give sanctuary and benefits to those that are bedraggled with physical, mental and intellectual infirmities.
National and International instruments that have been enacted to the Kenyan Laws strive to protect the rights of persons with disability and provide provisions to enhance access to justice and reduce discriminations of PWD.
Whereas disability is defined under section 2 of The Persons with Disabilities Act (PWDs) 2003 to mean a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacted adversely on social, economic or environmental participation.
Section 35 (3) of the Persons Living with Disability Act No. 14 of 2003 provides that Materials, articles and equipment, including motor vehicles, that are modified or designed for the use of persons with disabilities shall be exempt from import duty, value added tax, demurrage charges, port charges and any other government levy which would in any way increase their cost to the disadvantage of persons with disabilities.
Section 42 1(a) of the said Act further provides the conditions and procedures that apply that no person is eligible for an exemption or deduction unless the exemption or deduction has been recommended by the Council dealing with Persons with Disability and approved by the appropriate government authority.
Article 260 of the Constitution defines disability as “…any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities.”
Additionally, Article 54 (1) a) states that a person with any disability is entitled to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning.
Mental Health Act 2023 states that a person with mental illness” means a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes a person diagnosed with alcohol or substance use disorder and/or with suicidal ideation or behavior.
Persons with disability
National Policy define Disability to includes any physical, sensory, mental, psychological, or other impairments, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long- term effect on an individual’s ability to carry out ordinary day to-day activities (e.g., feeding, toiletry, movement, grooming).
United Nations Convention on the Rights of Persons with Disabilities (CRPD) defines persons with disabilities to include ―those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
Excise Duty Act, second schedule S4 provides for one motor vehicle for use by persons with disability provided the exemption under this paragraph shall only apply once in every four years and upon payment of taxes on the previous vehicle.
Tax exemptions are provisions that grant any person or activity favorable conditions that deviate from the normal provisions of the tax legislation. Tax exemption is not automatic.
The process of qualification must be complied with to the satisfaction of the Commissioner of Domestic Taxes, that the person to be declared as a disabled person, is duly registered upon a recommendation of the National Council for Persons with Disabilities.
In HKK v National Council for Persons with Disability & another (Constitutional Petition E008 of 2021) [2023] KEHC 2418 (KLR) the court held that in refusing registration and tax exemption of a person who had been medically certified as a person with disability, that person had been denied protection of the law, dignity and respect as prescribed for persons with disabilities pursuant to articles 27, 28 and 54 of the Constitution.
In Kiramana v National Council for Persons with Disability & Another (2023) eKLR, the Court rejected the argument by the Council that the Petitioner was rehabilitated and held that the Petitioner, who had been medically certified as a person with disability, had been denied due protection of the law, dignity and respect as prescribed for persons with disabilities pursuant to Articles 27, 28 and 54 of the Constitution of Kenya.
The Court consequently declared the Petitioner to be a PWD within the meaning of section 2 of the PWD Act and Article 260 of the Constitution, both of which exclude the disability threshold which vetting purports to evaluate.
In Republic v National Council for Persons with Disability; Ex-Parte BNB [2020] eKLR the court found fault in the NCPWD and KRA’s decision to deny the Applicant a tax exemption certificate and granted an Order of Mandamus directing the Respondent to issue a Certificate of Disability in respect of the Applicant for purposes of tax exemption.
Foregoing arguments with references to our Constitution, Statutes, international law and established case law establish that persons with significant disability are entitled to tax exemptions. Our Courts have expanded the application of these exemptions to align with modern development in the medical field. And the exemptions also allow those affected to end stigma.
Two thousand years ago, Jesus defied social norms and set free those with physical and mental disabilities. Zacchaeus and Matthew, the tax collectors saw Jesus work at close proximity. Isn't it time our current successors to Zacchaeus and Matthew felt the same empathy?
