[2019] KESC 46 (KLR)

Ojienda v Kenya Revenue Authority & another (Petition 6 of 2019) [2019] KESC 46 (KLR) (Civ) (11 February 2019) (Ruling)

Tom Odhiambo Ojienda v Kenya Revenue Authority & another [2019] eKLR

Neutral citation: [2019] KESC 46 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Petition 6 of 2019

DK Maraga, CJ, MK Ibrahim, JB Ojwang, SC Wanjala & I Lenaola, SCJJ

February 11, 2019

Between

Tom Odhiambo Ojienda SC

Applicant

and

Kenya Revenue Authority

1st Respondent

Law Society of Kenya

2nd Respondent

(Being an Application for review of the decision of a single Judge of the Supreme Court dated 7th February, 2019 and issuance of conservatory orders pending an appeal from the Ruling and Order of the Court of Appeal (Koome, Murgor & Kantai JJ.A) delivered on 6th February, 2019)

Ruling

1. Before the Court is the Applicant’s Notice of Motion dated 7th February, 2019 and filed on 8th February, 2019. The Application is brought under Article 163(4)(a) of the Constitution, Section 24(2) of the Supreme Court Act, 2011 and Rules 3(5) and 26(1) of the Supreme Court Rules, 2012.

2. The Application seeks the following orders:(a)The Applicant’s application for conservatory Orders filed on 7th February, 2019 and dismissed on the same day by Honourable Lady Justice Njoki Ndungu (SCJ) be referred to a bench of five Judges for consideration.(b)The Order made on 7th February, 2019 by Honourable Lady Justice Njoki Ndungu (SCJ) dismissing the Applicant’s application for conservatory Orders filed on 7th February, 2019 be and is hereby reviewed and set aside.(c)The Applicant’s application for conservatory Orders filed on 7th February, 2019 be heard by five Judges.(d)The costs of this Application be provided for.

3. The Application is supported by an affidavit sworn by Prof. Tom Odhiambo Ojienda on 7th February, 2019 who depones that the single Judge erred by holding that the Application for Conservatory Orders was not predicated upon a Petition of Appeal yet a Petition of Appeal is indeed on record. The Applicant thus urges that there is an error on the face of the record requiring consideration by five Judges of this Court and that he stands to suffer grave injustice if the Order by the single Judge is not reviewed and his application for Conservatory Orders is not referred to a five Judge bench for consideration.

4. On our part, we find that Section 24(2) of the Supreme Court Act, 2011 and Rule 4(4) of the Supreme Court Rules, 2012 contemplates that decisions of a single Judge may be reviewed by a bench of five Judges. Further, that the jurisprudence of this Court on the conditions for grant of a review order was well expressed in the case of Parliamentary Service Commission v. Martin Nyaga Wambora & Others SC Application No. 8 of 2017; [2018] eKLR in which we held that in an application for review, the Applicant has to demonstrate how a single Judge erred in making the impugned decision or how the said decision is clearly wrong as a result of which there has been an apparent injustice.

5. In the present case, we note that the single Judge dismissed the Applicant’s Notice of Motion, on the singular ground that the Application was not supported by a Petition of Appeal. As such, the Judge found that there was no substantive matter for the Court to address. In holding so, the Judge relied on the decision in Yusuf Gitau Abdallah v. Building Centre (K) Ltd & 4 Others SC Petition No. 27 of 2014; 2014 eKLR in which held that an interlocutory application cannot originate proceedings before the Court.

6. Having considered the application and on reading the Court record, we find that although the Applicant filed a Petition of Appeal on 7th February, 2019, seeking to appeal the Ruling and Order of the Court of Appeal in Civil Application No. 363 of 2018 (UR 296 of 2018) which Ruling and Order is the subject of the application which was dismissed by the single Judge, the said Petition was not before the Judge neither was it traceable at the time she made her orders. Accordingly, we find that the single Judge did not err by holding that there was no Petition of Appeal on record and striking out the Applicant’s Notice of Motion dated 7th February, 2019. However, since there is now a Petition on record, the applicant is at liberty to file a fresh application as he may wish.

Orders 7. (a)The Applicant’s Notice of Motion dated 8th February, 2019 is hereby dismissed.(b)The Applicant is at liberty to file a fresh application for Conservatory Orders as he deems fit and the same to be determined on its merits.(c)There shall be no Orders as to costs.

8. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2019. ..........................D. K. MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT..........................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT..........................J. B. OJWANGJUSTICE OF THE SUPREME COURT..........................S.C. WANJALAJUSTICE OF THE SUPREME COURT......................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the Original.REGISTRARSUPREME COURT OF KENYA