[2014] KEHC 5473 (KLR)
The court held that the petitioner, as a director, lacked locus standi to sue on behalf of LAMBVAL LOGISTICS LIMITED, which was not a party to the proceedings. The company, being a separate legal entity, must pursue its own remedies, and it had a statutory right of appeal under the East Africa Community Customs...
Source-derived case information.
- Citation
- [2014] KEHC 5473 (KLR)
- Parties
- Applicant: Julius Nyerere Opiyo; Respondent: The Republic; Respondent: Commissioner General, Kenya Revenue Authority; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 165 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objections and Directions
- Outcome
- Partial striking out and directions issued.
- Judges
- DAS Majanja
- Legal Topics
- Locus Standii, Judicial Review, Corporate Personality, Customs Licensing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Nyerere Opiyo
Applicant
The Republic
Respondent
Commissioner General, Kenya Revenue Authority
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objections and Directions
Legal Issues
- 1 Whether the petitioner, as a director, has locus standi to sue on behalf of a company that is not a party to the proceedings.
- 2 Whether there is a cause of action against the 2nd respondent, Kenya Revenue Authority, in the circumstances.
- 3 Whether the company has alternative remedies under the East Africa Community Customs Management Act and Regulations.
Ratio Decidendi
The court held that the petitioner, as a director, lacked locus standi to sue on behalf of LAMBVAL LOGISTICS LIMITED, which was not a party to the proceedings. The company, being a separate legal entity, must pursue its own remedies, and it had a statutory right of appeal under the East Africa Community Customs Management Act and Regulations. Consequently, there was no cause of action against the 2nd respondent, Kenya Revenue Authority, and it was struck out from the proceedings. The court further directed that the issue of anticipatory bail be served upon the Director of Public Prosecutions and fixed the matter for directions.
Court Disposition
Partial striking out and directions issued.
Orders
- The 2nd respondent, Kenya Revenue Authority, is struck out from the proceedings.
- The petitioner is directed to serve a notice of the petition and application for anticipatory bail on the Director of Public Prosecutions.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 165 OF 2014
BETWEEN
JULIUS NYERERE OPIYO …………….........................................……….. PETITIONER
AND
THE REPUBLIC …………………………......................................… 1ST RESPONDENT
COMMISSIONER GENERAL,KENYA REVENUE AUTHORITY …..2ND RESPONDENT
THE ATTORNEY GENERAL ………..........................................…… 3RD RESPONDENT
RULING
In the petition dated 7th April 2014, the petitioner seeks, inter alia, the following relief, “An order of certiorari to quash the Kenya Revenue Authority withdrawal of the Petitioners Automated Customs Declaration Password …”
According to the deposition of Aqulino Mwaithali, a Senior Revenue Officer in the Customs Department, the issue at hand is the licence of LAMBVAL LOGISTICS LIMITED which is a clearing and forwarding company licenced by the Kenya Revenue Authority. The company was informed by a letter written to the National Police Service dated 3rd March 2014 that it had been suspended from the Sumba System pending investigation by the National Police Service.
It is clear that the Company which is the holder of the licence is not a party to this suit and that as a corporate body, the director cannot sue on its behalf. Furthermore, the Company has recourse against the decision to suspend its licence under the East Africa Community Customs Management Actand the East Africa Community Management Regulations to appeal to the Commissioner against the decision to suspend its licence.
In my view therefore, there is no cause of action against the 2nd respondent and it is accordingly struck out from these proceedings.
As regards the issue of anticipatory bail, I direct the petitioner to serve a notice of Director to Prosecutions with the petition and application and the matter is fixed for directions on 19th May 2014.
DATED and DELIVERED at NAIROBI this 7th day of May 2014.
D.S. MAJANJA
JUDGE
Mr Mukoya instructed by Kasamani and Company Advocates for the petitioner.
Ms Sanga, Advocate, instructed by the Kenya Revenue Authority for the 2nd respondent.
Ms Irari, Litigation Counsel, instructed by the State Law Office for the 3rd respondent.