Nazima Malik

Email: NMalik@kapstrat.com
Position: Partner
Practice Area: Arbitration & Mediation | Litigation | Tax & Stamp Duty Planning

• Advocate – High court of Kenya

• English

• Representing Care International on a PAYE tax dispute arising from an agreement with the Kenyan Government.
• Successfully obtained a decision from the High Court which sets out the parameters within which the Kenya Revenue Authority can demand payment of withholding tax; representing Barclays Bank against the Commissioner of Domestic Taxes on a withholding tax claim. The issue in dispute was whether payments to credit card companies were in respect of services and therefore subject to withholding tax.
• Representing Bamburi Cement Limited in an appeal from the Income Tax Tribunal on a transfer pricing issue. The case is being used by the Kenya Revenue Authority as a test case on the basis of which transfer pricing claims are likely to be raised against multinational companies in Kenya in future.
• Represented Bata Kenya on an appeal from the Tax Appeals transfer pricing assessment. The outcome of the appeal would have impacted the methods that the client used in determining the arm’s length nature of its transactions and would also set a precedent for establishing the extent to which the Kenya Revenue Authority can disregard the transfer pricing methods used by a tax payer. The matter was settled out of court.
• Successfully argued a judicial review application for British American Tobacco Kenya that quashed a claim by the Commissioner of Domestic Taxes for payment of excise duty.
• Representing Coca Cola in a value added tax (VAT) appeal to the High Court. The Appeal is against the VAT Tribunal’s decision in respect of VAT on exported services. The Tribunal held that the marketing services provided by Coca Cola to affiliated companies outside Kenya were locally consumed services and liable to payment of VAT. The outcome of the appeal will set down the ‘use and consumption’ test with regards to exported services and will also determine the extent to which Kenyan Courts are willing to uphold the VAT Guidelines issued by the Organisation for Economic Co-operation and Development (OECD) which are applied worldwide.
• Successfully represented Delta Airlines Inc in an application for injunction against Delta Connection stopping them from infringing the “DELTA” mark. The ruling is one of the few by a Kenyan court on an internationally known mark.
• Represented IBM East Africa Limited in an appeal against a transfer pricing assessment and value added tax assessment raised by the Kenya Revenue Authority.
• Represented BATA Kenya Limited in an appeal against a Transfer Pricing Assessment by the Kenya Revenue Authority.
• Advised on a breach of contract claim between I&M Bank and Emerging Markets Payments (EMP) for the provisions of an integrated payment system. The matter involved a complex payment structure in the Fintech space.
• Been appointed by His Excellency the President of the Republic of Kenya as the Chairperson of the National Legal Aid Service Board.
• She has recently been involved in multimillion dollar disputes arising in the emerging jurisprudential area of transfer pricing.