Wakilii

Right Honourable Jocelyn Victor Hay, Earl of Erroll v Commissioner of Income Tax (Civil Appeal No. 20 of 1939)

East African Court of Appeal · [1940] EACA 4 · 1940 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya in action to recover income tax
Decision
Appeal dismissed; validity of Income Tax Ordinance, 1937 upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the Kenya Legislative Council had full power to enact the Income Tax Ordinance, 1937. The power to legislate for the peace, order and good government of the Colony, delegated by the Imperial Parliament through the British Settlements Act, 1887, and the Letters Patent of 1920, included the power to impose direct taxation. The Ordinance was a measure necessary for the peace, order and good government of the Colony and was not repugnant to the law of England within the meaning of the Colonial Laws Validity Act, 1865, as it did not conflict with any Imperial statute expressly extending to the Colony.

Outcome

Appeal dismissed; validity of Income Tax Ordinance, 1937 upheld

Facts

The Commissioner of Income Tax sued the Earl of Erroll for Sh. 4,860, being income tax assessed for 1937 under the Income Tax Ordinance, 1937, plus a penalty for non-payment. The Earl admitted the assessment and that he had not appealed against it, but refused to pay on the ground that the Kenya Legislative Council had no power to enact the Income Tax Ordinance, 1937. He argued that the enactment was not necessary for the peace, order and good government of the Colony and that the Legislative Council, not containing a majority of elected representatives, could not enact direct taxation without infringing Magna Charta, the Bill of Rights, 1689, the Petition of Right, 1627, and the Act of Settlement, 1700. The trial judge found for the Commissioner. The Earl appealed.

Issues

  1. Whether the Kenya Legislative Council had power to enact the Income Tax Ordinance, 1937.
  2. Whether the enactment of the Income Tax Ordinance, 1937, was necessary for the peace, order and good government of the Colony.
  3. Whether the Income Tax Ordinance, 1937, was repugnant to the law of England within the meaning of Article X of the Letters Patent dated 11th September, 1920.
  4. Whether the Kenya Legislative Council, not containing a majority of elected representatives, could enact legislation for direct taxation without infringing Magna Charta, the Bill of Rights, 1689, the Petition of Right, 1627, and the Act of Settlement, 1700.

Orders

  • Appeal dismissed.
  • Decision of Thacker J. affirmed.
  • Costs of the appeal awarded to the respondent.

Rules and key headnotes

Constitutional Law — Legislative Power — Delegation — British Settlements Act, 1887 — Power to Establish Laws for Peace, Order and Good Government
The power invested in His Majesty in Council by section 2 of the British Settlements Act, 1887, to establish laws necessary for the peace, order and good government of a British Settlement includes the power to legislate for direct or indirect taxation.
Constitutional Law — Legislative Power — Delegation — Letters Patent — Delegation to Colonial Legislature
The power of His Majesty in Council under section 3 of the British Settlements Act, 1887, to delegate the powers given by section 2 of the Act has been duly and effectually performed by Article X of Letters Patent dated 11th September, 1920, whereby His Majesty in Council delegated his power to establish laws for the peace, order and good government of Kenya to the Kenya Legislative Council subject to such laws not being repugnant to the Law of England.
Tax Law — Direct Taxation — Legislative Competence — Colonial Legislature
The powers delegated to a colonial legislature to establish laws for the peace, order and good government of a colony include the power to establish legislation for direct or indirect taxation.
Constitutional Law — Repugnancy — Colonial Laws Validity Act, 1865 — Meaning of Repugnancy to Law of England
A colonial law is repugnant to the law of England within the meaning of the Colonial Laws Validity Act, 1865, and Article X of the Letters Patent only if it is repugnant to the provisions of an Act of Parliament extending to the colony by express words or necessary intendment, not merely because it differs from or conflicts with general principles of English common law or constitutional enactments not expressly applied to the colony.
Constitutional Law — Settled Colonies — Applicability of English Law — Limitations
Settlers in a British colony acquired by settlement carry with them the common law of England and such statute law as is applicable to the needs of an infant community, but not the entirety of English statute law, and subsequent legislation in England does not affect the colony unless expressly made to extend to it.
Statutory Interpretation — Peace, Order and Good Government — Scope of Legislative Power
The words 'peace, order and good government' in a statute or Letters Patent conferring legislative power on a colonial legislature are words of the widest import and authorize the utmost discretion of enactment for the attainment of those objects, including the raising of revenue by taxation.
Constitutional Law — Colonial Legislature — Nature of Authority — Not a Delegate of Imperial Parliament
A colonial legislature established by Imperial statute is not a delegate or agent of the Imperial Parliament but is a legislature restricted in the area of its powers yet within that area unrestricted in its legislative authority, subject to the overriding sovereignty of the Imperial Parliament.

Legislation cited (14)

  • Income Tax Ordinance, 1937
  • British Settlements Act, 1887 s.2
  • British Settlements Act, 1887 s.3
  • Letters Patent of 11th September, 1920 Article VIII
  • Letters Patent of 11th September, 1920 Article X
  • Colonial Laws Validity Act, 1865 s.2
  • Colonial Laws Validity Act, 1865 s.3
  • Magna Charta
  • Bill of Rights, 1689
  • Petition of Right, 1627
  • Act of Settlement, 1700
  • Foreign Jurisdiction Act, 1890 s.12
  • Slave Trade Act, 1843 s.1
  • Offences against the Person Act, 1861 s.48

Cases cited (15)

  • District Commissioner of Nairobi v Wali Mohamed (1913-14) 5 E.A.L.R. 175
  • Commissioner of Income Tax v. Guranidittgmgl Kanayalal (The E.A. Standard, 21st January, 1922)
  • Powell v Apollo Candle Company Limited (1884-85) 10 A.C. 282
  • Riel v The Queen (1884-85) 10 A.C.
  • Rex v Earl of Crewe [1910] 2 K.B. 576
  • The Queen v Marais [1902] A.C. 51
  • Re Lord Bishop of Natal (1864) 2 Moo. P.C. 115
  • Kielley v Carson (1842) 4 Moo. P.C. 63
  • Mayor of Canterbury v Wyburn and the Melbourne Hospital [1895] A.C. 89
  • Lauderdale Peerage Case (1884-85) 10 A.C. 692
  • Cooper v Stuart (1889) 14 A.C. 286
  • Phillips v Eyre (1870) L.R. 6 Q.B. 1
  • Coltness Iron Co v Black (1881) 6 A.C. 315
  • Staples v. The Queen (unreported Privy Council case)
  • Sprigg v Sigcau [1897] A.C. 238

Full judgment

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Right Honourable Jocelyn Victor Hay, Earl of Erroll v Commissioner of Income Tax (Civil Appeal No. 20 of 1939) [1940] EACA 4 (1 January 1940)
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