Petition Filed Against Churches, Mosques, Temples Exempted From Paying Taxes

A doctor based in Nakuru City has moved to court challenging the legality of those exempted from paying taxes, including places of worship such as churches.

The petition seen by Viral Tea which was filed at the High Court in Milimani, Nairobi, had questioned certain provisions of the Income Tax Act Cap 470 which provides for the payment of income tax by various individuals and entities based on the right of the government to impose taxes as enshrined at article 209 of the Constitution of Kenya.

The petition, registered as Petition No. E001 of 2024, claimed that the provisions violate constitutional principles of fairness and equity in taxation, with a specific focus on sections 3(2) and 13 of the Income Tax Act.

The doctor, Dr Magare Gikenyi Benjamin, a Kenyan Medic Consultant Trauma and General Surgeon, argued that these provisions create a closed group of individuals and entities exempt from income tax.

Dr Benjamin Magare. A medical doctor who is also a public litigator in Nakuru city, during a past interview. /NATION MEDIA GROUP

"That to further go against constitutional dictates, the impugned statute(ITA) especially in section 13 purports to provide exemptions to payment of income tax income tax to a class of people. This is contrary to constitutional dictates which mandate all of us to share the tax burden fairly/equally.

"That the effect of section 13 is to allow certain groups of individuals and entities to legally be exempted by the statute while the rest of Kenyans carry their burden which in itself is discriminatory in nature and is clearly contrary to articles 27,28 and 201(b)(i) & (c) of the constitution (2010)," reads the petition in part.

Dr Benjamin argued that the exemptions have allowed the so-called "exempts" which include the likes of churches, mosques, temples, some Non-Governmental Organizations (NGOs), some donation groups and individuals making billions of money to benefit from this loophole to the detriment of other Kenyans who are toiling to pay their taxes.

He indicated that tithes, offerings and donations as well as other amounts of money are not taxed courtesy of this provision.

According to him, Article 201(c) states that "the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations", with the doctor calling for the sharing of tax burdens across all sectors equally or fairly as opposed to other Kenyans carrying a load on behalf of others.

"That this absurd situation has continued for so long until now it has been taken as a "normality". As a general rule, a statute is null and void if it is contrary to the constitution. There is no role of discrimination in terms of carrying out tax burden," added the petition.

The move comes as Kenyans have been complaining regarding the proliferation of rogue churches that bank on the poor congregants to make billions of shillings.

The Registrar of Societies on Friday, August 18, 2023, cancelled the registration of New Life International Church owned by Pastor Ezekiel Odero after being on the radar regarding the filing of tax returns. However, the Pastor would challenge this decision at the High Court.

Speaking to YouTuber Esther Nyonje on the Kenya Explained show on June 1, 2023, former Chief Justice Willy Mutunga claimed that churches in Kenya were not known for remitting taxes and that they should file taxes just like any other organisation.

Pastor Ezekiel Odero's Mavueni Complex which was on Saturday, April 28, 2023, searched by investigators from the Directorate of Criminal Investigations. /STANDARD DIGITAL