Total Kenya has been ordered to pay Sh20.7 million to a former dealer after the High Court found that the oil marketer continued using his business name, Kenya Revenue Authority (KRA) PIN and contact details after their business relationship had ended.
The court found that Total Kenya used the credentials of David Kamau Ngure and his business, Dasken Enterprises, without his consent for about 230 days between January 1 and August 18, 2020.
The dispute arose from the operation of Total’s Likoni Road Service Station in Nairobi’s Industrial Area, which Mr. Ngure had managed as a “Young Dealer” under a Marketing License Agreement (MLA).
The agreement was terminated on December 31, 2019, although Total said the station was formally handed over on February 24, 2020. Ngure later complained that the company continued using his business name, KRA PIN, telephone number and email address even after the agreement had ended.
The High Court found evidence supporting his claim. Invoices and tax withholding certificates from transactions at the station continued to carry his KRA PIN months after the termination of the agreement.
Total had denied controlling Ngure’s PIN and email address, arguing that the credentials had remained with his employees before the termination. The company also said it ended the agreement after discovering alleged fraud involving its Total Card system, which Ngure could not adequately explain.
However, the court ruled that Total was responsible for tax liabilities created through transactions conducted using Mr. Ngure’s PIN.
The court ordered Total to provide a full account of all VAT, PAYE and income tax returns filed using his PIN between January 1 and August 18, 2020. The company must also settle any resulting tax liabilities, penalties and interest owed to KRA.
After Total provides proof of payment, KRA must remove or transfer the liabilities from Ngure’s PIN to Total’s PIN within 30 days.
The oil marketer was also ordered to relinquish control of Ngure’s email address, unsubscribe his telephone number and settle outstanding National Social Security Fund obligations and penalties relating to employees at the station for 2020.
Ngure told the court that the continued use of his details exposed him to tax problems, prevented him from obtaining a tax compliance certificate and caused financial and reputational damage.
The court found that Total’s actions violated his constitutional rights to privacy and property and breached the Data Protection Act. Total Kenya has since filed a notice of appeal against the judgment.