Double taxation occurs when the same income is subject to tax in two different jurisdictions, a situation commonly arising in cross-border trade or investment. Tax authorities seek to mitigate this issue through Double Taxation Agreements (DTAs), which are bilateral treaties allocating taxing rights between the participating countries. Most DTAs are modeled on the OECD Model Tax Convention (OECD MTC).

The Kenya-France DTA came into force on January 1, 2001. In this DTA, there is no specific article on the treatment of management and professional fees. The High Court confirmed the Tax Appeals Tribunal's (TAT) decision that withholding tax (WHT) is not payable on management and professional fees unless the same has been specifically provided for in the DTA.

Total Kenya Limited (Total Kenya) is a wholly owned subsidiary of Total Outre Mer (TOM), a company incorporated and resident in France. The Kenya Revenue Authority (KRA) conducted an audit of Total Kenya's tax affairs and found that Total Kenya did not apply withholding tax (WHT) when making payments for management and professional services to TOM. The KRA raised an assessment to Total Kenya on the basis that Total Kenya's payments to TOM were taxable as they fell within Section 35 of the Income Tax Act Cap 470 Laws of Kenya (ITA).