[2025] KEHC 10248 (KLR)
The court found that, according to the court tracking system, Nairobi Milimani Commercial Petition No. e013 of 2025 involving the same parties and reliefs was still pending and scheduled for ruling. The petitioners' assertion that the earlier petition was withdrawn was unsupported by any formal court order. In the...
Source-derived case information.
- Citation
- [2025] KEHC 10248 (KLR)
- Parties
- Applicant: Peter Opiyo; Applicant: CPA Peter Gacheru; Applicant: CPA Denis Nyambati; Respondent: Kenya Revenue Authority; Respondent: Commercial General, Kenya Revenue Authority; Respondent: Attorney General; Interested Party: Institute of Certified Public Accountants; Interested Party: Law Society of Kenya
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E010 of 2025
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- Petition stood over for mention; petitioners directed to regularize position regarding withdrawal of earlier petition.
- Judges
- JK Ng'arng'ar
- Legal Topics
- Res Subjudice, Preliminary Objection, Withdrawal of Petition, Section 6 Civil Procedure Act, Article 159 Constitution, Tax Dispute Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Opiyo
Applicant
CPA Peter Gacheru
Applicant
CPA Denis Nyambati
Applicant
Kenya Revenue Authority
Respondent
Commercial General, Kenya Revenue Authority
Respondent
Attorney General
Respondent
Institute of Certified Public Accountants
Interested Party
Law Society of Kenya
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present petition is barred by the doctrine of res sub judice under Section 6 of the Civil Procedure Act due to the existence of Nairobi Milimani Petition No. e013 of 2025.
- 2 Whether the petitioners have demonstrated that the earlier petition has been formally withdrawn.
- 3 Whether proceeding with the current petition would violate Section 6 of the Civil Procedure Act.
Ratio Decidendi
The court found that, according to the court tracking system, Nairobi Milimani Commercial Petition No. e013 of 2025 involving the same parties and reliefs was still pending and scheduled for ruling. The petitioners' assertion that the earlier petition was withdrawn was unsupported by any formal court order. In the absence of such evidence, proceeding with the current petition would contravene Section 6 of the Civil Procedure Act, which prohibits simultaneous proceedings on the same matter between the same parties. The court therefore declined to proceed and directed the petitioners to regularize their position by providing a formal withdrawal order if the earlier petition had indeed been...
Court Disposition
Petition stood over for mention; petitioners directed to regularize position regarding withdrawal of earlier petition.
Orders
- The petitioners are directed to supply the court with a formal order evidencing withdrawal of Nairobi Milimani Petition No. e013 of 2025 if such withdrawal has occurred.
- The matter is stood over for mention for the petitioners to indicate how they intend to proceed.
Full Case Text
Judgment text and source record
36 paragraphs
Opiyo & 2 others v Kenya Revenue Authority & 2 others; Institute of Certified Public Accountants & another (Interested Parties) (Constitutional Petition E010 of 2025) [2025] KEHC 10248 (KLR) (16 July 2025) (Ruling)
Neutral citation: [2025] KEHC 10248 (KLR)
Republic of Kenya
In the High Court at Bomet
Constitutional Petition E010 of 2025
JK Ng'arng'ar, J
July 16, 2025
IN THE MATTER OF ARTICLE 2,10,19,20,22,23,25(c) , 27,35,47,50,159 AND 258 OF THE CONSTITUTIONAL OF KENYA, 2010 AND 2. IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 25,27,35,47 AND 50 OF THE CONSTITUTION OF KENYA,2010 AND IN THE MATTER OF KENYA REVENUE AUTHORITY ACT NO. 2 OF 1995 AND IN THE MATTER OF TAX PROCEDURES ACT NO. 29 OF 2015 AND IN THE MATTER OF PROCEDURES ACT 2015 (AMENDED 2023) SECTION 23A AND IN THE MATTER OF VALUE ADDED TAX ACT NO. 35 OF 2013 AND IN THE MATTER OF INCOME TAX ACT CAP 470, REVISED EDITION, MAY 2024 AND IN THE MATTER OF THE ACCESS TO INFORMATION ACT NO. 31 OF 2016 AND IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015 3. AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF VAT SPECIAL TABLES GUIDELINES
Between
Peter Opiyo
1st Petitioner
CPA Peter Gacheru
2nd Petitioner
CPA Denis Nyambati
3rd Petitioner
and
The Kenya Revenue Authority
1st Respondent
Commercial General, Kenya Revenue Authority
2nd Respondent
The Attorney General
3rd Respondent
and
Institute of Certified Public Accountants
Interested Party
Law Society of Kenya
Interested Party
Ruling
1. This is a ruling to the Preliminary Objection dated 2nd July, 2025 herein. When this matter came up for directions on 3rd July, 2025 the above objection was raised by the respondents but the petitioner herein had filed Milimani HCC Petition No. e013 of 2025 raising the same reliefs and bearing the same parties and therefore violation of section 6 of the Civil Procedure Act.
2. The petitioner on their part submitted vide a replying affidavit a summon by Peter Opiyo on 7th July, 2025 contend that the Nairobi Petition No. e013 of 2025 was withdrawn and this is within the knowledge of the respondents’ advocates. He therefore opposes the Preliminary Objection dated 2nd July, 2025. That this matter has already been handled and directions given.
3. This state of scenario made me to tame judicial notice of the fact that the current position can be ascertained via the CTS (court tracking system).
4. I have checked vide the system and indeed find that there is a matter in Nairobi Milimani Commercial petition No. e013 of 2025 that the system shows to be slated for ruling on 23rd October, 2025 before Justice Gikonyo. It was filed on 23rd May, 2025 before this matter and the application for withdrawal seems not to have been effected.
5. As it is, I am not able to proceed unless the petitioners regularizes their position.
6. If indeed they went to have the other matter withdrawn the they supply this court with a formal order to that effect otherwise proceeding in the present state will violate the provisions of Section 6 of the Civil Procedure Act.I therefore place the ball on the feet of the petitioners.
7. This matter may be mentioned later for the petitioner to consider how they intend to proceed. I have invoked the provisions of Article 159 of the Constitution.
RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF JULY, 2025. .................................HON. JULIUS K. NG’ARNG’ARJUDGE16/7/2025Before Hon. J.K.Nga’rnga’r JudgeCA:SieleKathengo for the petitionersNyaga and Isutse for the 1st and 2nd RespondentsMoraga for the 2nd interested party