https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1771

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **JUDICIAL REVIEW APPLICATION NO. E078 OF 2025** **REPUBLIC APPLICANT** *VERSUS* **COMMISSIONER OF CUSTOMS AND** **BORDER CONTROL RESPONDENT** **AND** **PAUL MAKOKHA OKOITI EX PARTE APPLICANT** **JUDGMENT** The ex parte applicant is acting in person. The respondent was served, entered an appearance on 3 December 2025, but failed to file any record. The applicant moved the court with his application seeking; 1. an order of mandamus directed at the Commissioner of Customs and Border Control to give the ex parte applicant Customs Bond cancellation vouchers for the following T-812: 2. 2008MSA 1154532 dated 10 April 2008, T810 2008 MSA 2254388 dated 9 April 2008, cancelled on 7 May 2008 by user code D02042 Bernard Kago 6677. 3. 2008 MSA 1133838 dated 26 March 2008, cancelled on 7 May 2008 by user Code D02042 Bernard Kago 6677.2008MSA 1134341 dated 26 March 2008, T810. 4. 2008MSA 1158039 dated 12 April 2008 T810 2008 MSA 1157428dated 11 April 2008 cancelled on 7 May 2008 by user Code D02042 Benard Kago 6677. 5. 2008MSA 1153012 dated 9 April 2008 T810 2008 MSA 1152471 dated 8 April 2008 cancelled on 7 July 2008 by user Code D02042 Bernard Kago 6677. 6. 2008MSA 1158010 dated 12 April 2008 T810 2008 MSA1157565 dated 11 April 2008 cancelled on 13 May 2008 by user Code 000000000000000000000000000 [***not visible***] 7. The applicant is further seeking an order of mandamus directed to the Commissioner for Customs and Border Control to give to the ex parte applicant a seizure notice for the following trucks that were carrying ready-made garments in transit to Uganda that were dumped within the local market. 8. KAD 931E/ZB4179 carrying container No. PONU8159057. 9. KAD 382X/ZC4270 carrying container No.MSKU0195952. 10. KAD 931E/ZB4179 carrying container No.INKU2891072. 11. KAD 933E/ZB4182 carrying container No.TCKU9079291. 12. KAG 046W/ZB7739 carrying container No.PCIU8324388. 13. The ex parte applicant is seeking an order of mandamus directed at the Commissioner of Customs and Border Control to give him the copies of the offence raised and compounded against the clearing agent Fast Wings Clearing and Forwarding company for the said dumping and the receipts paid for any recovered customs duty that was lost is a result for the revenue of dumping of the ready-made garments on transit to Uganda that were being cleared by the said clearing gent as enshrined under article 147 of the East Africa Community Management Act, 2004. 14. The costs be in the cause. The ex parte applicant filed his affidavit and statement in support of his application. His case is that, without the information he seeks from the respondent, he is unable to contest in any way the manner in which his dismissal from the Kenya Revenue Authority (KRA) was carried out. Some decisions injurious to the ex parte applicant were never brought to his attention. The law must be followed to the letter, and public documents used to dismiss him cannot be withheld. It is the ex parte applicant’s case that he was the employee of Customs and Border Control, which was absorbed by KRA in 1995. The ex parte applicant was employed as a customs officer stationed at Busia Customs Border Station. The legal grounds for removal from service and public office should be served on the affected person, and the officer should be allowed to respond before a final decision is made. The principles of natural justice should be observed. The ex parte applicant asserts that the absence of the charges against him precluded his removal from office in breach of the law. The non-compliance by the Commissioner of Customs and Border Control with the bond cancellation vouchers, the driver's statement, and seizure notices for the tracks was not provided. There are no details regarding the dumped goods in the local market. No bond cancellation should be effected by the Commissioner of Customs and Border Control until the clearing agent has met all conditions of the security bond. No bond cancellation should be effected before the revenue covered by the security bond is collected, or before any lost revenue is recovered by the Commissioner of Customs and Border Control from the clearing agent after failure to meet all the conditions of the security bond. The ex parte applicant’s case is that his dismissal from service was malicious and in bad faith. It was predetermined after being sent home without the charges and given a hearing to respond to them. The Human Resource Manager implemented the executive order rather than serving as the custodian of fair process, and failed to protect the ex parte applicant from unlawful dismissal. The orders sought should be issued. The ex parte applicant also filed his written submissions. He submitted that he was employed by the KRA and had worked for 22 years before being dismissed on 3 February 2009. The respondent accused him of making false entries to show that the goods in transit to Uganda had crossed the border. The documents provided by the respondent proved that the security bonds for the T812s in the ex parte applicant’s suspension letter dated 21 July 2008 were all cancelled in the Simba System 2005, indicating that the clearing agent had met all the conditions of the security bonds. The body cancellation vouchers were supported by the T812S, which are required by the East African Customs Management Act and contain the Rotation Numbers and verification accounts of the ex parte applicant, Busia Customs Station. The ex parte applicant thus seeks that the orders sought be granted. An order of mandamus to compel the respondent to give the documents to him. There is no response from the respondent. **Determination** As outlined above, the respondent only entered an appearance and did not attend or provide any response. The court is left with only the ex parte applicant’s records and submissions. The ex parte applicant opted to seek judicial review. His case was that the KRA employed him as a customs officer stationed at Busia Customs Border Station. The KRA terminated his employment as an Assistant Revenue Officer through notice of dismissal dated 3 February 2009, on account of gross misconduct. He was accused of making false entries to show that goods in transit to Uganda had crossed the border. The ex parte applicant is thus seeking an order of mandamus directing and compelling the respondent, the Commissioner of Customs and Border Control, to provide him with customs bond cancellation vouchers for the various T812s that are the subject of the accusations leading to his termination of employment. His case is that without this information, he is unable to act in any way in which his dismissal from KRA was executed and thus seeks the court to compel the respondent, Commissioner of Customs and Border Control, to give him copies of the offence raised against him. Traditionally, the purpose of Judicial Review proceedings was designed as an oversight judicial process by the court on administrative actions for the lawfulness, which focuses on procedure and not merit as held in [**Wandaka & 2 others v Director Directorate Criminal Investigations. & another; Muiruri (Interested Party) [2026] KEHC 5861 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5861/eng%402026-04-30)**.** This position is reiterated in **Simon Musyoka Kaingo v Z.W. Gichana, Senior Resident Magistrate, Nairobi Children Court & 2 others [2018] KEHC 6623** **(KLR),** where the court held that the purpose of judicial review proceedings is to address defects in decision-making processes by public bodies, and not to deal with the merits of the case. The ex parte applicant confirmed that he was an employee of the KRA. His employment was terminated on 3 February 2009 for gross misconduct. The reasons were that he had entered false entries to show that goods on transit to Uganda had crossed the border. His case is that the respondent failed to provide him with the necessary records, which led to the accusations. Ordinarily, a claim such as the one presented by the ex parte applicant should be filed against the principal, the employer, and the KRA. Although the ex parte plaintiff was serving under the Customs & Excise Department, managed by the respondent, the Commissioner of Customs and Border Control, as an Assistant Revenue Officer, such service does not confer an employer/employee relationship. The acts complained of, termination of employment by dismissal on account of gross misconduct, are by the KRA and not its department, where the ex parte applicant was placed. Judicial proceedings, such as those invoked herein by the ex parte application, do not excuse him from filing it against the wrong respondent. Although acting in person, the proper respondent should be the employer who terminated employment. Granting the orders sought against the wrong respondent would not achieve the intended purpose. Filing judicial review proceedings instead of a Memorandum of Claim does not exculpate the ex parte applicant from moving the court properly. Acting in person is not a sufficient excuse. Indeed, under Rule 10 of the Employment and Labour Relations Court (Procedure) Rules, a party may move the court by way of a Memorandum of Claim to seek the enforcement of fundamental rights and freedoms, including orders of judicial review. This allows the court to properly place the claims made and issue appropriate replies. The ex parte applicant is seeking records of Customs Bond cancellation vouchers for various T812S, dating back to 2008. To begin with, employment terminated on 3 February 2009. Under section 89 of the Employment Act, properly invoked, an employee is allowed 3 years to claim against any work injury against the employer. In this case, the respondent is not the employer but the KRA, which is not a party herein. Fundamentally, time to move the court against the employer, if any, lapsed on 2 February 2012. Time cannot be extended to claim against the employer through judicial review proceedings. The provisions of section 90 of the Employment Act are couched in mandatory terms. The purpose for which the ex parte applicant is seeking the respondent to be compelled to issue the Customs Bond Cancellation vouchers is lost in time. See **Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] KECA 257 (KLR)**, where the court held that, as much as the court may sympathise with the employee, where a claim relates to an employment relationship, the time to move the court is regulated under the law. The court has no discretion to extend time for any purpose, including claims for violations of rights. In this case, since 3 February 2009, the ex parte applicant has not explained why he has not sought the records against the respondent, a department of the KRA, the employer. Additionally, where the employment relationship is properly invoked, which is not the case here, the employer is allowed under section 10(6) and 74 of the Employment Act to keep work records, including disciplinary records, for 3 years only: ***(6) The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment.*** These provisions are not in conflict but in tandem with section 89 of the Employment Act. The rationale is that the employee has 3 years to move the court seeking the production of work records, and hence, within such period, a 5-year requirement to keep such work records would reasonably ensure access to such records. Thus, filing proceedings after 3 years from the date employment ceased is time-barred. Seeking the provision of work records, including Customs Bond Cancellation vouchers for the various T812s after 6 years, is unreasonable, and the respondent, who is not the employer, is not lawfully required to keep such records. Furthermore, under section 234(1A) of the East African Community Customs Management Act (EACCMA), an owner of goods is required to keep every document required or authorised under the Act for 5 years. By their nature, the owners of the various T812S should have held the necessary records and documents now sought by the ex parte applicant. Section 234(1A) of the Act requires that: ***(1A) An owner of goods shall keep every document required or authorised for the purposes of this Act for a period of five years.*** Under section 235(1) of EACCMA, it requires that: ***235. (1) The proper officer may, within five years of the date of importation, exportation, transfer or manufacture of any goods, require the owner of the goods or any person who is in possession of any documents relating to the goods;*** * 1. ***to produce all books, records and documents relating in any way to the goods; and*** 2. ***to answer any question in relation to the goods; and*** 3. ***to make a declaration with respect to the weight, number, measure, strength, value, cost, selling price, origin, destination or place of transhipment of the goods, as the proper officer may deem fit.*** Hence, under section 234(4) of the EACCMA, the owner of the goods has a legal duty to keep records of imports and exports. These should have the same validity as the original documents. ***(4) The proper officer may retain any document produced by any owner under the provisions of this section, but such owner shall be entitled to a copy of the document certified under the hand of the responsible officer; and the certified copy shall be admissible in evidence in all courts and shall have equal validity with the original.* [underline added].** The EACCMA thus contemplates a scenario in which, during the transaction period, each party must retain a copy of each transaction. The retention period for the documents should be 5 years. In this case, since 2008, neither party would be required to produce documents more than 5 years old. Finally, under the EACCMA, persons and businesses involved in importing, exporting or warehousing goods must retain all related customs documents for at least 5 years. These provisions apply to all member states. It allows revenue authorities across the East African Community member states to conduct post-clearance audits and verify trade compliance. Hence, revenue authorities such as the KRA cannot make additional tax or duty assessments beyond the 5-year statutory limit. Where the records sought by the ex parte applicant were applied against him, leading to the cessation of employment on 3 February 2009, the employer, KRA, or the respondent, the Commissioner of Customs and Border Control, is not legally required to keep his work records beyond 5 years. It must also be emphasised in this regard that it is neither the objective nor the purpose of judicial review proceedings to usurp the role of the employer’s internal disciplinary procedures that are properly seized of matters before them. See [**Frejed Engineering Limited v Chief Magistrate, Milimani Commercial Court; Tuffsteel Limited (Interested Party) [2025] KEHC 18262 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18262/eng%402025-12-04)**.** The orders sought by the ex parte applicant are untenable. They cannot issue, however, couched. **The application herein is dismissed. Costs to the respondent.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** **…………………………………… and …………………………………..…**