NAIROBI, Kenya, Jan 31 – The Supreme Court has rejected a bid by the Kenya Ports Authority (KPA) to be joined as an interested party in an ongoing appeal challenging the legality of tax exemptions tied to multi-billion shilling port infrastructure projects.
In a ruling delivered on Thursday, the apex court dismissed KPA’s application seeking to participate in Petition No. E006 of 2025, which contests the validity of Legal Notice No. 15 of 2021 that granted tax exemptions to several financing agreements linked to Mombasa port developments.
KPA had argued that it had a direct financial stake in the outcome of the case, citing tax demands by the Kenya Revenue Authority (KRA) amounting to about Sh4 billion, potential withdrawal of financiers, and risks of stalled projects if the Court of Appeal’s decision upholding the legal notice is overturned.
However, the judges held that KPA failed to meet the threshold for joinder, noting that its interests were already adequately represented by the National Treasury and the Attorney General, who are parties to the case.
“We find that the issues highlighted by the applicant/intended interested party have been largely addressed by the parties in the appeal, particularly the 3rd and 5th respondents,” the court said in its ruling.
The court further faulted KPA for seeking to join the proceedings at the final stage, despite being aware of the case during its hearing at the High Court and Court of Appeal.
“We also find that the applicant/intended interested party did not apply to be joined to the proceedings before the High Court or the Court of Appeal, and has not provided a justifiable reason for this lapse,” the judges ruled.
As a result, the Supreme Court dismissed the application and ordered each party to bear its own costs, dealing a blow to KPA’s attempt to directly defend tax arrangements underpinning key port and special economic zone projects financed through bilateral agreements.
The substantive appeal, which raises questions over parliamentary oversight of tax exemptions and the constitutionality of differentiated tax treatment, will now proceed without KPA’s direct participation.
