[2022] KEHC 16435 (KLR)

Sangitaben Vinubhai Parmar Harsidhi Enterprises Ltd v Attorney General & 7 others (Miscellaneous Application 717 of 2021) [2022] KEHC 16435 (KLR) (Commercial and Tax) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16435 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application 717 of 2021

A Mabeya, J

December 16, 2022

IN THE MATTER OF AN APPLICATION BY PARMAR VINUBHAI SOMABHAI, SANGITABEN VINUBHAI PARMAR & HARSIDHI ENTERPRISES LIMITED LEAVE TO APPLY FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS, CERTIORARI AND PROHIBITION IN THE MATTER OF ARTICLES 21, 22, 23, 27(1), 47 AND 165 (6) & (7) OF THE CONSTITUTION OF KENYA BETWEEN

Between

Sangitaben Vinubhai Parmar Harsidhi Enterprises Ltd

Applicant

and

Attorney General

1st Respondent

Solicitor General

2nd Respondent

Director of Public Prosecution

3rd Respondent

Kenya Revenue Authority

4th Respondent

Commissioner of Income Taxes

5th Respondent

Commissioner of Domestic Taxes

6th Respondent

Commissioner, Investigations & Enforcement

7th Respondent

Chief Magistrates Court, Nairobi

8th Respondent

Ruling

1. Before court is the applicant’s notice of motion dated 25/5/2022. The same was brought inter-alia, under order 50 rule 6 and order 54 rule 1 of the Civil Procedure Rules.

2. The applicant sought the review and setting aside of the orders made on 14/3/2022 that struck out the application dated 26/8/2021 and sought that the time for filing the substantive Motion be extended.

3. The application was supported by the affidavit of Parmar Vinubhai Somabhai. The applicant contended that the Commissioner of Income Tax had demanded a sum of Kshs.510,563,263/- from the applicant. Pursuant thereto, the applicant moved the Court for leave to apply for judicial review on 26/1/2021.

4. Leave was granted but the substantive motion was not filed thereafter. By a made on 14/3/2022, the Court held, interalia, that the substantive motion was not filed within 21 days of leave therefore the leave granted lapsed on 7/10/2021 and the applicant’s application dated 26/8/2021 was struck out.

5. The applicant argued that this court has the inherent power to exercise discretion in favour of the applicant and allow the present application to resuscitate the application that was struck out.

6. In opposition, the 4th, 5th, 6th and 7th respondent (the respondents) jointly filed grounds of opposition dated 4/7/2022.

7. They contended that the application lacks merit and was incompetent. That there had been unexplained, inordinate delay by the applicants before seeking to file the substantive motion out of time. That the applicant was guilty of abuse of the court process for abandoning judicial review proceedings midway after securing the initial ex-parte orders.

8. They further contended that the extension of time is not a right of a party but rather an equitable remedy that is only available to a deserving party at the discretion of the court. That the orders sought could not issue as the applicants had not laid a basis for the resuscitation of the application that had been struck out.

9. I have considered the entire record. This is an application for review and enlargement of time to file an application out of time.

10. The jurisdiction to review an order is conferred under order 45 of the Civil Procedure Rules. The grounds upon which a review is to be ordered are; where there is an error apparent on the face of the record, there has been discovery of new evidence and for sufficient reason. The application must be made timeously.

11. The order sought to be reviewed was made on 14/3/2022. The present application was made on 25/5/2022. That was after a period of 72 days. The applicant argued that the delay in filing the present application was because its advocate erroneously filed the application for extension in the Constitutional and Human Rights Division and had to withdraw it, causing a delay.

12. Page 21 of the annextures is the subject application. The same was filed on 4/4/2022. That was less than a month after the impugned orders were made. That application was withdrawn and the present one filed on 25/5/2022 more than a month later. That part of the delay was not explained.

13. As regards the grounds for review, none were set out either in the body of the motion or the supporting affidavit. In any event, I see no error apparent on the face of the record, there is no new evidence that was pleaded that was not there at the time of making the order and in any event, there is no sufficient reason to review the order. The prayer for review therefore fails.

14. As regards extension of time, the court has discretion to grant the same under order 50 rule 6 of the Civil Procedure Rules wherein it is provided that: -“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

15. The applicant pleaded that the previous advocates failed to file the substantive application on time and failed to attend court on various instances. That this culminated in the ruling of 14/3/2022.

16. On the other hand, the respondents argued that the applicant abandoned the proceedings after obtaining ex parte orders without good cause. That therefore, he did not deserve an extension of time.

17. The court notes that applicant’s advocates did not appear in court on various occasions. This being a judicial review application, the applicant may not have been aware of the necessary procedures, that after leave is obtained, a substantive application ought to be filed within 21 days.

18. I further note that the applicant’s grievances in the draft substantive application attached to this application relate to a tax demand by KRA of Kshs.520,563,263/-.

19. There are two issues that militate against the application. No substantive motion can be filed without first having leave. The initial leave having lapsed and the application been struck out, nothing prevented the applicant from bringing a fresh application for leave upon which a fresh Motion could be predicated upon. The court was alive to the fact that if it dismissed the previous application, it would have prejudiced the applicant as he would have been caught up by the doctrine of res judicata. In order to avoid such prejudice, the court only struck out the application for reasons contained in the ruling.

20. Secondly, if the extension is granted, which leave would sustain that motion as the initial one had expired by effluxion of time. By granting the Motion, the court would be acting in futility.

21. In the premises, I find the application to be without merit and the same is dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER, 2022. A. MABEYA, FCIArbJUDGE