[2016] KEHC 6359 (KLR)
The court found that the applicant failed to provide any supporting documentation to substantiate the claimed bank requirements for the delay. The court held that it was the applicant's responsibility to act diligently and that the respondent should not be burdened by the applicant's incapacity or delays....
Source-derived case information.
- Citation
- [2016] KEHC 6359 (KLR)
- Parties
- Applicant: Milimani Resort Hotel Limited; Respondent: Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 14 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Application for Extension of Time to Comply With Court Order
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Bank Guarantee, Compliance With Court Orders, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milimani Resort Hotel Limited
Applicant
Kenya Revenue Authority
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Extension of Time to Comply With Court Order
Legal Issues
- 1 Whether the petitioner has provided sufficient grounds for extension of time to comply with the court order for provision of a bank guarantee.
- 2 Whether the application amounts to a review of the earlier court order without a formal request for review or appeal.
Ratio Decidendi
The court found that the applicant failed to provide any supporting documentation to substantiate the claimed bank requirements for the delay. The court held that it was the applicant's responsibility to act diligently and that the respondent should not be burdened by the applicant's incapacity or delays. Furthermore, the court noted that granting the application would effectively amount to a review of its earlier order, which the applicant had neither sought nor appealed against. The application was also deemed premature as it was filed before the expiry of the original compliance period. Consequently, the court disallowed the application and awarded costs to the respondent.
Court Disposition
application dismissed
Orders
- The application for extension of time is disallowed.
- The respondent shall have the costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
PETITION NO.14 OF 2015
MILIMANI RESORT HOTEL LIMITED....................................PETITIONER
VERSUS
KENYA REVENUE AUTHORITY........................................... RESPONDENT
R U L I N G
1. By the motion dated 4. 12. 2015 brought under the provisions of Article 159 of the Constitution the appellant prays that:
“The honourable court be pleased to extend the time for the petitioner's compliance with the order issued on 2nd December 2015 for provision of a bank guarantee by 75 days or such number of days as will be sufficient for the petitioner to procure the same.”
The appellant's affidavit in support states the reasons as follows:
“That the equity bank requires:
30 days for the credit department at Nairobi to consider the application and the security advanced for approval.
15 days for bank valuers to value the pieces of land to be given as security.
30 days processing and registering the charges over the property including obtaining all the necessary consents and paying stamp duty.”
2. The respondents have filed grounds of opposition in opposing the application. Its argument is that the application is a waste of time and is simply a delaying tactic and that its only meant to reopen the matter afresh.
3. Having carefully read the application together with the supporting affidavit I respectfully do not find any merit on the same. The reasons for such conclusion are two fold, namely that there is no supporting document showing such bank requirements. Even if there was it was upon the applicant to act fast and prudently and it cannot burden the respondent with his personal incapacity. In any event I do not think that this could be the only bank available with such stringent time bound datelines.
4. Secondly, and as clearly suggested by the respondent, if the court were to allow the application it would amount to a review of the orders earlier issued which the applicant has not sought, neither has he appealed against.
5. The application is therefore disallowed. The same was premature as it was brought even before the expiry of the period ordered by the court, namely 21 days. The court is also conscious of the fact that the applicant ought by now to have taken the advantage of this delayed ruling as the court was on official leave.
The respondent shall have the cost.
Orders accordingly.
Dated, signed and delivered this 10th March, 2016
H. K. CHEMITEI
J U D G E