The High Court’s refusal to suspend enforcement of the Sh384.5 million stamp duty claim against NCBA has sparked fresh concerns across the corporate sector, with legal analysts warning that the decision could reshape how mergers and acquisitions are structured in Kenya.
The ruling which upheld an earlier judgment quashing the 2019 waiver issued during the merger of NIC Bank and CBA, affirmed that allowing the bank to delay payment would “offend constitutional principles,” including Article 2(4), which bars the validation of unlawful administrative actions.
While the order directly affects NCBA, its impact is expected to ripple far beyond one lender. Legal and financial experts say the judgment firmly signals that historic tax exemptions granted outside clear legal thresholds will face increased scrutiny, regardless of the size or political connections of the entities involved.
The case, initiated by activist-turned-senator Okiya Omtatah, reignited debate over politically influenced tax waivers and highlighted breaches of the Stamp Duty Act and the constitutional requirement for equitable tax sharing under Article 201. Judges noted that the waiver had previously been declared contrary to public interest, making it unenforceable through later appeals.
NCBA, whose major shareholders include the Kenyatta and Ndegwa families, had warned that immediate payment could strain liquidity and weaken shareholder value, given that the merger’s financial modelling incorporated the waiver. The court dismissed those concerns, stating that business considerations cannot override constitutional violations.
With KRA and the Collector of Stamp Duty now cleared to recover the Sh384.5 million, financial lawyers say companies pursuing mergers will need to re-evaluate their reliance on government-granted incentives. The ruling underscores a tougher judicial stance that could influence pending and future corporate consolidations, forcing firms to prioritise compliance over political goodwill in deal-making.
