[2024] KEHC 8081 (KLR)
The court found that the application for certiorari was filed outside the statutory six-month limitation period prescribed by section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. Consequently, the preliminary objection was upheld to the extent that leave to institute judicial review...
Source-derived case information.
- Citation
- [2024] KEHC 8081 (KLR)
- Parties
- Applicant: Republic; Respondent: Kenya Revenue Authority; Applicant: Dr. John Kennedy Omanga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 175 of 2023
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- Preliminary objection upheld in part; leave for certiorari struck out as time-barred; leave for mandamus and prohibition remains; costs to respondent.
- Judges
- JM Chigiti
- Legal Topics
- Judicial Review, Certiorari Limitation Period, Mandamus, Prohibition Orders, Tax Objection Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kenya Revenue Authority
Respondent
Dr. John Kennedy Omanga
Applicant
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for certiorari was filed within the statutory six-month limitation period under section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules.
- 2 Whether the orders of mandamus and prohibition sought in the same application are subject to any statutory limitation period.
Ratio Decidendi
The court found that the application for certiorari was filed outside the statutory six-month limitation period prescribed by section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. Consequently, the preliminary objection was upheld to the extent that leave to institute judicial review proceedings for certiorari was time-barred and could not be sustained. However, the court held that the orders of mandamus and prohibition sought in the same application are not subject to any statutory limitation period, and therefore, the leave previously granted to pursue those remedies remains in force. Costs were awarded to the respondent.
Court Disposition
Preliminary objection upheld in part; leave for certiorari struck out as time-barred; leave for mandamus and prohibition remains; costs to respondent.
Orders
- The Notice of Preliminary Objection dated 18th January 2024 is upheld to the extent of the leave to institute judicial review order of certiorari.
- The leave that was granted to the applicant to pursue orders of mandamus and prohibition shall remain in force.
Full Case Text
Judgment text and source record
27 paragraphs
Republic v Kenya Revenue Authority; Omanga (Exparte Applicant) (Judicial Review Miscellaneous Application 175 of 2023) [2024] KEHC 8081 (KLR) (Judicial Review) (20 June 2024) (Ruling)
Neutral citation: [2024] KEHC 8081 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Judicial Review
Judicial Review Miscellaneous Application 175 of 2023
JM Chigiti, J
June 20, 2024
Between
Republic
Applicant
and
Kenya Revenue Authority
Respondent
and
Dr. John Kennedy Omanga
Exparte Applicant
Ruling
1. The Exparte applicant filed a Notice of Motion dated 6th November 2024 wherein he sought the following;A.An order of Mandamus be issued against the Commissioner of Investigations and Enforcement, his authorized officers and any person whomsoever or howsoever acting on, with and or under his instructions, compelling him to consider the Notice of Objection dated 10th June, 2022. B.An order of Certiorari to bring the Honourable Court and quash the Commissioner of Investigation and Enforcement decisions vide letters of 20th July, 2022 and 4th August, 2022. C.An order of Prohibition directed towards the Commissioner of Investigation and Enforcement, his authorized officers and or any other person (s) whomsoever or howsoever acting on, with and or under his instructions, prohibiting him from demanding any payments of and or taking any enforcement action of whichever nature in respect of any written law.
2. In reacting to the Application, the Respondent filed a Notice of Preliminary Objection dated 18th January 2024 raising the grounds that:1. The Suit herein has been filed contrary to the provisions of section 9(3) of the Law Reforms Act Cap. 26. 2.The Suit herein has been filed contrary to the provisions of Order 53, Rule 2 of the Civil Procedures Rules.
3. In the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. At page 700 Law JA stated:“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
4. Section 9(3) of the LRA provides as follows:“In case of an application for an order of certiorari to remove any judgement, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgement, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
5. The Applicant acted in contravention of Order 53, rule 2 of the CPR which states that:“Leave shall not be granted to apply for an order of certiorari to remove any judgement, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to an appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
6. This court has taken note of the fact the Exparte applicant also seeks orders of mandamus and prohibition in the same application, which orders have no prescribed limitation period.
7. It is this court’s finding and I so hold that the preliminary objection has merit.
Order:1. The Notice of Preliminary Objection dated 18th January 2024 is upheld to the extent of the leave to institute Judicial review order of Certiorari.2. The leave that was granted to the applicant to pursue orders of mandamus and prohibition shall remain in force.3. Costs to the Respondent.
DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 20TH DAY OF JUNE,2024. ................................J. CHIGITI (SC)JUDGE