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Submission of Memoranda On The Finance Bill 2023


The Association of Women Accountants of Kenya (AWAK) is a non-political and non-profit making professional women accountants’ organization, which draws its membership from women accountants that have attained full CPA qualifications. In addition, women that have attained CPA Part II are eligible to join as associate members.

AWAK was formed in 1992 to provide a forum for women in accountancy to network, grow and develop in their career, profession, and business so as to contribute to the country’s economic development. It was formally registered under the Societies Act in 1994 and officially launched by the then American Ambassador to Kenya, Aurelia E. Brazeal in August 1995.

The Finance Bill 2023

AWAK is in support of the Government and the Bottom-Up Economic Transformation Agenda for inclusive growth as this is an assured way for Kenya to grow into a developed country, with a majority of its citizens being middle class. The 2023 Finance Bill comes at a time of great uncertainty; as major world economies face a myriad of challenges including a runaway inflation. In Kenya, prices of commodities have continued to rise as the shilling depreciates against major world currencies. Kenyans therefore have high expectations on the FY 2023/2024 budget, to provide some relief on the cost of living.

The Kenyan Treasury has to balance between the Government’s need for funds to finance its Recurrent, Capital and Financing (Loan Repayments) needs, versus a tax-payer and consumer who feels pushed to the limit.

Income tax was first introduced in Kenya in 1921 and the Graduated Personal Tax (GPT) in 1934. Overtime, post-independence, even with the abolishment of GPT in 1973, time value of money has rarely been taken into consideration in the revision of tax bands.

The World Bank in September 2022 adjusted the extreme poverty line, based on data from 15 low income countries, to US Dollars 2.15 per person per day from the previous US Dollars 1.9. Using the May 16th 2023 Central Bank of Kenya Mean rate of 137.1 Kshs / USD; and the Kenya National Bureau of Statistics 2019 Census results (https://www.knbs.or.ke/2019-kenya-population-and-housing-census-results/)
where an average household was found to have 3.9 members; this would mean any household with a monthly income of Kenya 3 Shillings 2.15137.13.9*30 days = 34,487.50 should be considered as living in extreme poverty, therefore not liable for any income tax. The current bill however proposes to have someone earning an income of Kshs 32,334 and above join the 30% tax bracket, previously considered the highest tax bracket.

We therefore propose a review of the tax brackets based on available World Bank statistics, where those earning Kshs. 35,000 a month are not liable for income tax and the 10% tax band begins for those earning above that amount. Further, the use of statistics to have the 30% tax band be for people earning at least Kshs. 100,000 a month.

The Kenya Government has continued to put a lot of emphasis on Pay As You Earn (PAYE) which is easier to collect. However, this only captures the few formally employed Kenyans as compared to consumption taxes like VAT which can net the entire country. In the financial year 2021/2022 The Kenya Revenue Authority collected Kshs. 461.815 Billion in PAYE from few employees as compared to Kshs. 244.693 Billion in VAT from 50 Million Kenyan Residents.

In a global perspective, a number of countries with high GDPs either don’t charge any personal income tax or charge as low as a maximum of 15%. Such countries have concentrated on encouraging consumption and investment from where government then raises its revenue.

The Association of Women Accountants of Kenya, has gone through the Finance Bill 2023 and makes the following submissions:

NOSection/AreaIssue of ConcernRationale/Likely ImpactRecommendation
19 &
Income Tax Act
CAP 470

31(B)(1) and Section 31B(3)
Housing Fund Levy:

The Bill proposes the introduction of a 3% Housing Fund Levy for all employees, capped at Kshs 5,000
from both employer and employee.

The Housing Fund levy is geared to create a fund for affordable housing for qualifying citizens. These are citizens whose monthly earnings are
within the bracket of Kshs 50,000
and Kshs 149,999.

Key issues with the proposed funds
a) The requirement that all
employees contribute the
Housing Fund Levy even if they
do not qualify for Affordable
Housing Scheme.
b) That for those who do not
qualify for Affordable Housing
Scheme, the amount is a saving
and they can access after 7
years, net of administrative
expenses and subject to return
on the funds.
c) That this is not a tax but a saving

The Legislation does not consider the following:
a) That 70% of Kenyans are rural
population and own homes and
therefore do not require the
Housing Fund
b) It is discriminative as it forces
employees who do not qualify for
the Affordable Housing Scheme to
contribute irrespective of their
current needs and commitments.
c) Does not address the root cause of issues leading to many Kenyans
not owning homes. This include lack of access to financing for the
informal sector, the extremely
high cost of materials, lack of
favorable policies and tax reliefs.
a) Any increase in taxes and/or levies
will put pressure on salaried/wage
workers amid stagnant wages and
high inflation over the past three
years. Changing it to voluntary
contribution will enable workers to
meet running obligations on
mortgage payments, school fees,
medical expenses, the high cost of
power and feed their families, as well as build capital that will stimulate economic growth.
b) The proposed actions are a diversion from the new government’s
manifesto, which was to expand the tax base as opposed to burdening
existing taxpayers with more taxes.
c) Forcing this deduction on the working population will demoralize them and
lead to poor service delivery in public sector and tax avoidance as well as increased ills such as corruption. This is because the workers will have
increased focus on alternative avenues to meet high cost of living and may slide further to poverty.
d) Suspending the fund or making it voluntary will provide an opportunity
to review the alternative avenues for Kenyans to access affordable housing.
This will also inspire confidence of the
population by enabling choice based on individual or professional assessment of the benefit of the scheme before joining the scheme or
working with the alternative avenues.
e) The proposal will also overburden employers with increased cost of employment and may lead to loss of current employment opportunities.
a) Change the conditions to a voluntary scheme. The legislation governing the administration and the proposition of the same should convince the population to join the scheme if more attractive compared to existing options.
b) Exclude those that do not qualify for affordable housing scheme from the contributions. These are likely to own homes already, are not interested in owning homes or are servicing
c) Engage industry stakeholders on what needs to be done to drive
affordable housing in the economy. This may include enacting policies to reduce cost of building materials and
land and engaging with industry stakeholders on framework.
d) Strengthen existing housing schemes,
e.g. through reducing the limit for the regulated funds, REITS from Kes 5M to lower amounts to include more
Kenyans. This way, investors will be able to convert into units.
e) Reconsider impact of any increased deductions/ taxation on employment
income in the Finance Bill 2023. The middle class are already vulnerable
from the stagnating wages amidst rising cost of living and high taxes on both earnings and consumption, and at least a third of them are classified as “floating middle class” as they
could easily slide to low income earners and poverty.
f) Put in place a framework that works equally for the formal and informal
20Income Tax

Turnover Tax:

The Finance Bill proposes to reduce
the threshold for resident persons to
qualify for Turnover tax to those whose turnover from business is more than Kshs 0.5M but does not exceed Kshs 15M.
Further, Finance Bill proposes to increase Turnover tax rate from 1% to 3%.
Increasing the tax rate to 3% on a tax that
is based on gross turnover, in an
environment of high operating cost will
put pressure on small businesses and
– Reduce the desire of micro enterprises to embrace the turnover
tax as they view the new rates as punitive.
– Drive the enterprises with thin margins out of business.

If effected as is, the Government may
negatively affect SMEs who form 98% of
the Kenyan Business community and
contribute 30% of GDP
The reduction in threshold is acceptable since it ensures that only Micro and Small
Enterprises are considered.

Maintain the turnover tax rate at 1% to encourage the micro enterprises to embrace the formal sector and formalize
businesses and manage costs in a highcost operating environment.

Since this tax is based on gross turnover, a 3% rate or 200% increase would be
significant for such businesses that mostly operate on thin margins.
(i) 1
Income Tax Act CAP 470
Third schedule
Change in the rate of tax as follows:

On the first Kshs. 288,000 10%
On the next Kshs. 100,000 25%
On the next Kshs. 5,612,000 30%
On all income over Kshs.
6,000,000 35%

a) The proposed tax rates will put
someone earning a gross income
of Kshs 32,334 per month and
above on the 30% or high income
earner tax bracket.

b) Kenyan tax rates have not factored in inflation over time
and the proposals to expand the brackets and adjust the 30%
threshold to higher income earners.

c) There is an over-reliance by successive governments on PAYE and the formally employed as compared to consumption taxes
and the informal sector. In the FY
2021/2022 KRA collected Kshs.
461.815 Billion in PAYE from 5.6
million Kenyans compared to
Kshs. 244.693 Billion in VAT from 50 million Kenyans.
a) Lower personal income taxes will
lead to higher purchasing power,
build-up of capital and savings, ability of employees to acquire homes and accelerate economic growth. On
the contrary, high tax rates stifle economic growth and increase
poverty rates in a country.

For example, African countries like
Seychelles and Mauritius are ranked at 52 and 73 in GDP per Capita globally yet
their maximum personal income tax rates are 15%.

b) Employees earn one off payments annually which may push their
income to the 35% tax bracket but their total annual income qualifies
them for a lower tax bracket. This will lead to many tax refund applications, and a frustrated tax-payer
a) The Government is urged to cut down on its expenditure especially on noncritical capital and recurrent costs, while giving tax cuts and reliefs to tax
payers to enable an economic

b) The Government should widen the tax base and target other nontraditional sources to finance the budget. These include the informal sector and will ensure each Kenyan
pays their fair amount of taxes.

c) To enable predictability which is one of the principles of a good tax system, laws should be enacted to ensure tax rates remain static for 3-5 years.
55Income Tax Act CAP 470
WHT on rental income and
appointment of property agents
as tax agents
While any move to bring more Kenyans to
the tax base is laudable, shifting of compliance burden to property agents will increase their cost of doing business. The following issues are highlighted:
a) The compliance cost and burden on the requirement to deduct, file and remit the tax within twenty-four
hours after making the deduction will lead to non-compliance and tax

b) Most small scale agents may not have
the necessary skills and knowledge on how to effect this requirement, and may end up out of business.

c) Some rogue agents may not submit
deductions leading the rental property owners with tax bills.

On the other hand, the proposal to reduce
Monthly Rental Income Rates to 7.5% shows the government’s commitment to affordable housing, and will also encourage more property owners to pay taxes.
a) We propose a requirement that all rental income should be paid through the banks which will enable the
Income Tax Commissioner map out all taxpayers and expected tax revenues.

b) There should also be a national deadline for payments of rent to
landlords for example 5th or 10th of each month which will be known as an obligation by tenants and will
ensure landlords have the funds to pay taxes by the due date.
(a) (1) &
(b) (3)
Tax Appeals
Tribunal Act
CAP 435
Section 32
Requirement to deposit 20% of
the disputed amount before
lodging an appeal at the High

Timing of the refund of the
a) If enacted, this proposal will impose a
huge cash outflow especially if the
amount involved is high. Not all affected taxpayers have the capability to pay the 20% deposit.

b) This proposal is against the tenets
and law of Fair Administrative Action
in that tax payers are required to pay upfront to access justice and even where the ruling is in favor of the taxpayer, KRA is not required to pay interest on such deposits.

c) The Commissioner’s track record of processing refunds is ordinarily pegged availability of funds.

d) The proposal conflicts with a February 17, 2023, Supreme Court
ruling by Deputy Chief Justice Philomena Mwilu that prohibited such preconditions on suits to be heard in court.
Our proposal is:
a) To make such deposits as minimal as possible – equal to court filing fees,
and to have an independent third party (perhaps the court) such deposits as requiring a taxpayer to
deposit funds with the commissioner who is the adversarial party is unfair.

b) Where the commissioner lodges an appeal at the high court, he/she should also be required to deposit using the same criteria

c) Any such funds to earn the tax payer some interest based on market rate to
be paid to the tax payer incase the ruling is in their favor
19 &
Income Tax Act CAP 470

Post-Retirement medical fund

The Bill proposes the introduction of
a relief on contributions made by a resident person towards a postretirement medical fund. The value of a proposed relief is 15% of
contribution capped at Kshs. 60,000
We laud this move. Medical insurance
cover is one of the key pillars of successful

According to the April 2022 report by players in the pension industry, saving through a stand-alone post-retirement
medical funds has suffered a low uptake
three years after coming into effect due to
conflicting budgetary needs and inadequate awareness campaigns.

Post-retirement medical fund (PRMF) Regulations that were set up in 2018 allow pension schemes and employers to set up medical funds for employees to save post-retirement health insurance
Relief on contributions will increase
voluntary contributions towards such

Findings of a survey by Strathmore University and Enwealth Financial services showed that about 41% of retirees pay for medical bills out of pocket. The data showed that a third of pensioners have private medical insurance, with a
fifth relying on National Health Insurance Fund (NHIF).

Due to high risk, older people have to pay
higher premiums to get medical insurance with some service providers
not offering medical cover to people aged above 65 years. We therefore propose that the government increases the relief amount to encourage such saving.
20Income Tax Act CAP 470
Proposal: Deduction of withholding tax from Sales promotion, Marketing, Advertising services and digital content monetization.

Introduction of withholding tax on
sales, promotion and advertisement
paid to resident persons in excess of
Kshs 24,000 per month at the rate of
5% of the gross amount and;

To charge withholding tax at 15% on
digital content monetization. This
includes offering payment for
entertainment, social, literal, artistic,
educational or any other material
electronically through any medium or
channel, in form of website
advertisement, social media
platform, brand sponsorship, affiliate
marketing, subscription services or
merchandise sales.
The move is progressive, as it aims to bring more businesses to the tax base.

However, if effected as is, the move may
negatively affect and discourage young
upcoming SMEs.
a) The is need to provide the threshold
for taxable amount to ensure that the
small-scale business engagements
are not killed before they are stable.

b) There is need for guidance on who
should register for tax in case of
getting minors in the tax ambit
II 28
The Bill seeks to delete Sections 5
(2)(aa) and (2)(ab) that apply VAT at
8% on goods listed in Section B of
Part I of the First Schedule of the VAT
Act – petroleum products, LPG,
including propane.

Proposal to subject petroleum
products to VAT at 16% and to
exempt liquefied petroleum gas
Any increase in the cost of petroleum products have an impact on electricity costs, cost of manufacturing and cost of transport, leading to even higher prices of
necessities including food and other
manufactured goods.

Kenya already has the highest price of fuel
and electricity in the region compared to
other countries with sea ports, and it is time to find ways of reducing our cost of production to make Kenyan goods
With the current high inflation rates, any
increase in the cost of goods will be unbearable to the common Kenyan.

We recommend that the government looks for ways of reducing the cost of fuel
and electricity charges. Reduction or elimination of taxes on fuel will greatly
ease the inflationary pressure on our
52Tax Procedures
Act No. 29
Security for unpaid taxes

The Bill seeks to amend Section 40 of the Tax Procedures Act, which
empowers the Commissioner to
utilize a taxpayer’s property as security for any unpaid taxes
currently, the commissioner is
required to notify a taxpayer 7 days from the date he notifies the Registrar of the property and intent to register
the security. The proposed amendment states that the Commissioner shall inform a taxpayer within 14 days of the registration of the security on their property.

The proposed amendment seeks to shift the requirement to notify a taxpayer that
their property will be used as security until after the registration of the security has been done.

This regulation will be prone to abuse and will contravene a taxpayers basic rights as provided under The Fair Administrative
Action Act No. 4 of 2015, as a taxpayers assets can be attached before they are notified of the intention to register the security.
Our recommendation is for Section 40 of the Tax Procedures Act to remain as is, seeing as currently, a tax payer is given a very limited time (7 days) within which to file any objection.