[2022] KEHC 16161 (KLR)

Diara Limited v Commissioner of Domestic Taxes (Income Tax Appeal E007 of 2021) [2022] KEHC 16161 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16161 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Income Tax Appeal E007 of 2021

A Mabeya, J

December 9, 2022

Between

Diara Limited

Applicant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. This ruling is in respect to the application dated 3/3/2022 brought under Article 159 of the Constitution of Kenya 2010, Section 80 of the Civil Procedure Act, Order 45 rule 2 of the Civil Procedure Rules 2010. The applicant seeks to review the judgment of the court delivered on 11/2/2022 and an order for costs.

2. The application is premised on the grounds set out on the face of the Motion and in the affidavit of Samora Marshelsworn on 3/3/2022. The applicant’s case is that the matter came up for mention on various occasions whereby the appellant had not filed submissions. The Court directed that failure to file submissions would have the appeal struck out. That however, judgment was delivered on 11/2/2022 in favour of the respondent without any submissions.

3. That the Court erred in considering submissions while neither party had filed any. That there was no appeal on record since the Court had struck out the appeal for want of submissions.

4. The application was opposed. The respondent filed a replying affidavit dated 10/3/2022 sworn A Almadiwho works for the respondent company as an advocate.

5. She stated that the submissions were filed on the Judiciary e-filing portal on 30/6/2021 the same day the Court gave its orders. That the applicant wrote two letters requesting for the Court orders of 30/6/2021 and ought to have seen the filed submissions. In her view, there was no error apparent on the face of record to warrant a review.

6. The application was canvassed by written submissions which I have seen and considered.

7. The applicant submitted that the appeal was nonexistent as it was struck out because the respondent had not filed the submissions as ordered by the court. It was further submitted that the court erred in considering submissions while the respondent had not served the submissions thus denying the applicant a right to a fair hearing.

8. The respondent submitted that the applicant was served on 30/6/2021 vides their firms email that appears in their pleadings. Counsel further submitted that the submissions were uploaded on the courts portal on the same day and the court was right to proceed and deliver judgment. It was submitted the threshold for review had not been met and there was no error on the face of record.

9. The requirements for review are set out in Order 45(1) of the Civil Procedure Rules. These are that there has to be an error apparent on the face of the record, the discovery of new evidence that was not available at the time the order or decree was made and for sufficient reason. The other ground is that the application should be made timeously.

10. The applicant’s case is premised on the ground that there was an error apparent on the face of record. That there was no appeal on record as the respondent had not filed submissions as ordered. In the premises, the appeal stood struck out for failure to file the submissions.

11. The respondent on its part stated contended that the submissions were filed and served on the same day the court gave its orders, that is on 30/6/2021 at 9. 40am. The respondent observed that the applicant was served on its law firms email address. Further it was averred by the respondent that after service the applicant on two occasions uploaded letters seeking the orders delivered on 30/6/2021 and therefore must have seen the submissions on the e filing portal.

12. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held: -“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”

13. Further, in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] e KLR, the court held: -“Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review…The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. To put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.”

14. In this matter, it is true that the respondent herein who was the appellant had not filed the submissions as ordered. On 30/6/2021, the Court extended time for filing the submissions by seven days with a default condition that the appeal would stand struck out if the order was not complied with.

15. I have looked at the judiciary E-portal. It is clear that on the same day, the respondent filed its submissions in compliance with the said order. In her replying affidavit to the application. Ms. Diana Almadi swore that she filed the said sub missions on the same date at 9. 40am. The same was neither denied nor challenged. Of course, it could not be challenged as the judiciary E-portal bears her out.

16. Accordingly, there is no error apparent on the record by the Court having considered the submissions on record at the time of writing the judgment.

17. In view of the foregoing, the application is without merit and is hereby dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. A. MABEYA, FCIArbJUDGE