[2004] KEHC 2533 (KLR)
The court found that it had jurisdiction under Order 53 rule 1(4) to vary its ex-parte orders to ensure they accurately reflected the court's intention. The handwritten order of 6th May 2004 did not direct the removal or cancellation of the agency and distraint notices, and the extracted order went beyond what was...
Source-derived case information.
- Citation
- [2004] KEHC 2533 (KLR)
- Parties
- Applicant: Century Advertising Limited; Respondent: The Commissioner of Income Tax
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 547 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Vary Ex Parte Orders
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Certiorari and Prohibition, Agency Notices, Distress Orders, Variation of Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Century Advertising Limited
Applicant
The Commissioner of Income Tax
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Vary Ex Parte Orders
Legal Issues
- 1 Whether the court had jurisdiction to vary its ex-parte orders granted on 6th May 2004.
- 2 Whether the extracted order accurately reflected the court's original order of 6th May 2004.
- 3 Whether the orders granted should remain in force pending the hearing and determination of the substantive judicial review application.
Ratio Decidendi
The court found that it had jurisdiction under Order 53 rule 1(4) to vary its ex-parte orders to ensure they accurately reflected the court's intention. The handwritten order of 6th May 2004 did not direct the removal or cancellation of the agency and distraint notices, and the extracted order went beyond what was actually granted. To prevent usurping the functions of the trial judge who would hear the substantive judicial review application, the court varied its earlier orders ex-parte on 24th May 2004. The court allowed the application to vary the orders, holding that the orders as granted on 24th May 2004 would remain in force until the hearing and final determination of the...
Court Disposition
application allowed
Orders
- The application dated 18th May 2004 is allowed.
- The orders granted on 24th May 2004 shall remain and continue in force until the hearing and final determination of the application for judicial review or until the court orders otherwise.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc. Civ Suit 547 of 2004
IN THE MATTER OF: AN APPLICATION BY CENTURY ADVERTISING LIMITED FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF: THE AGENCY NOTICES DATED 31/3/2004; 2/3/2004; 19/2/2004;
19/2/2004 ISSUED BY D. N. KORONGO, SENIOR ASSISTANT COMMISSIONER OF INCOME TAX AND DISTRESS ORDERS/NOTICE DATED 4/3/2004 ISSUED AGAINST CENTURY ADVERTISING LIMITED.
CENTURY ADVERTISING LIMITED…………..........................……….………….APPLICANT
-versus-
THE COMMISSIONER OF INCOME TAX………….............................…….….RESPONDENT
EX PARTE.......................................................................... CENTURY ADVERTISING LIMITED
R U L I N G
By Notice of Motion dated and filed on the 18th May 2004, the Respondent/Applicant sought (inter alia) orders varying the ex-parte orders granted on the 6th May 2004. The application is opposed upon the facts and grounds contained in the affidavit of Victor Grado made on the 8th June 2004.
I have considered the application in conjunction with the respective submissions of both counsel and the judicial authorities to which they have respectively referred me.
Firstly, I am satisfied that I have jurisdiction under order 53 rule 1 (4) to vary my orders of the 6th May 2004 in the manner in which I did on the 24th May 2004 when the application was heard ex-parte in the first instance.
Secondly, I have perused my handwritten order of the 6th May 2004 which was in the following terms:-
“ B) grant of leave to operate as a stay upto and
including the 3rd June 2004 unless extended
by the court when the main application shall
be heard inter parties.”
When the order was extracted and issued on the same day, the following words were added:-
“ of the proceedings in question, to wit, theremoval and/or cancellation of the agency,notices and the distraint notices issued by theCommissioner against the Applicantdated 31/3/04, 2/3/04, 19/2/04, 19/2/044/3/04………”
I did not order the removal and/or cancellation of the agency, notices and the distraint notices. I deliberately declined to do so as otherwise, I would have been usurping the functions of the trial judge before whom the substantive Notice of Motion for judicial review will be brought for hearing. It is for this reason, and for this reason alone, that I varied my said orders ex parte on the 24th May 2004 as the order annexed to the affidavit of Daniel Ngugi made on the 18th May 2004 in support of the application was at variance with the orders I had actually granted on the 6th May 2004.
Accordingly, the application dated the 18th May 2004 is allowed and the orders granted on the 24th May 2004 shall remain and continue in force until the hearing and final determination of the application for judicial review or until the court orders otherwise.
It is so ordered and also that each party shall bear its own costs of the application.
Dated and delivered at Nairobi this 22nd day of June 2004.
P. Kihara Kariuki
Ag. Judge