ABSA Bank PLC (ABSA) has been refused leave to appeal to the Supreme Court. This was by the Court of Appeal in a decision given on 5 November 2021. While the highest court in the land is the Supreme Court, Article 163(4) of the Constitution restricts access to that court to the following two situations:

• as of right where the case involves the interpretation or application of the Constitution; and
• in any other case where the Court of Appeal or Supreme Court certifies that a matter of general public importance is involved.

ABSA sought to persuade the Court of Appeal that the matter was one of general public importance, but this was rejected. The Court of Appeal relied on the 11 criteria set by the Supreme Court in determining whether there is an issue of general public importance in the case of Malcolm Bell v. Daniel Toroitich Arap Moi & Another [2013] eKLR, which are:

• for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
• where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have significant bearing on the public interest;
• such question or questions of law must have arisen in the court or courts below, and must have been the subject of judicial determination;
• where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
• mere apprehension of miscarriage of justice, a matter most apt for resolution [at earlier levels of the] superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court. The matter to be certified for a final appeal in the Supreme Court must still fall within the terms of Article 163(4)(b) of the Constitution;
• the intending applicant has an obligation to identify and concisely set out the specific elements of "general public importance" which he or she attributes to the matter for which certification is sought;
• determinations of fact in contests between parties are not, by [and of] themselves, a basis for granting certification for an appeal before the Supreme Court;
• issues of law of repeated occurrence in the general course of litigation may, in proper context, become "matters of general public importance", so as to be a basis for appeal to the Supreme Court;
• questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may become "matters of general public importance", justifying certification for final appeal in the Supreme Court;
• questions of law that are destined to continually engage the workings of the judicial organs may become "matters of general public importance", justifying certification for final appeal in the Supreme Court;
• questions with a bearing on the proper conduct of the administration of justice may become "matters of general public importance", justifying final appeal in the Supreme Court.

Lessons learned

• The Supreme Court has the power to review the decision of the Court of Appeal. It remains to be seen if this avenue will be pursued.
• Taxpayers must always approach tax disputes with the end in mind. The likely scenarios that could be faced must be a critical issue at every stage.
• Whenever a tax dispute arises, there is a need to consider carefully what the real issue is and to determine the best forum. Tax disputes are ordinarily dealt with by the Tax Appeals Tribunal at the first instance. There are, however, tax disputes that are left to the purview of the High Court. Should one move to the High Court (which is ideal in situations where there has been a violation of the Constitution) or follow the dispute resolution mechanism under the Tax Appeals Tribunal Act and the Tax Procedures Act? How you frame your case is critical. It is best to have your tax adviser consult at the outset, with a litigator if that resource is not available within the organisation. Their decision-making process has to be informed by the many judgments being delivered by the courts from time to time. Judges frown upon matters being presented as constitutional issues when they are plainly commercial disputes. There are, however, cases where only the courts are equipped to deliver justice on account of their mandate vis-à-vis the Tax Appeals Tribunal.