[2018] KEHC 5375 (KLR)

[2018] KEHC 5375 (KLR)

The court found that the respondents' demand for payment of tax from the applicant for goods lost in transit was contrary to law, as there was no evidence that the applicant was involved in the diversion or theft of the goods, and the criminal proceedings against the actual suspects were still pending. The court...

Source-derived case information.

Citation
[2018] KEHC 5375 (KLR)
Parties
Applicant: Republic; Respondent: Senior Assistant Commissioner (Enforcement Port Operations); Respondent: Commissioner of Customs Services; Respondent: Kenya Revenue Authority; Applicant: Liberty Freighters Limited
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
25 May 2018
Case Number
Miscellaneous Civil Application 40 of 2013
Procedural Posture
Miscellaneous Application / Judgment
Outcome
Application allowed in part; orders of certiorari and prohibition granted as per prayers 1 and 11, with costs to the applicant.
Judges
EM Muriithi, DO Ogembo
Legal Topics
Judicial Review, Customs Duties, Natural Justice, Administrative Action, Liability of Agents, Suspension of Licenses
Source Language
english
Administrative Law Tax Law Civil Procedure Judicial Review Customs Duties Natural Justice Administrative Action Liability of Agents +1 more

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Parties

Republic

Applicant

Senior Assistant Commissioner (Enforcement Port Operations)

Respondent

Commissioner of Customs Services

Respondent

Kenya Revenue Authority

Respondent

Liberty Freighters Limited

Applicant

Procedural Posture

Miscellaneous Application / Judgment

Legal Issues

  1. 1 Whether the respondents acted ultra vires in demanding tax from the applicant for goods lost in transit.
  2. 2 Whether the suspension of the applicant's access to the Simba system breached rules of natural justice and Article 47 of the Constitution.
  3. 3 Whether the applicant is entitled to the judicial review orders sought.

Ratio Decidendi

The court found that the respondents' demand for payment of tax from the applicant for goods lost in transit was contrary to law, as there was no evidence that the applicant was involved in the diversion or theft of the goods, and the criminal proceedings against the actual suspects were still pending. The court held that under Regulation 104(22) and (23) of the EACCM Regulations, a person can only be penalized for diversion of goods upon conviction, and the applicant had not been convicted or shown to have contributed to the loss. The respondents' action to suspend the applicant's access to the Simba system was also found to be procedurally unfair, as there was no finding of guilt or...

Court Disposition

Application allowed in part; orders of certiorari and prohibition granted as per prayers 1 and 11, with costs to the applicant.

Orders

  • An order of certiorari is issued to quash the demand note/obligation to pay customs duty (Ksh 1,238,884.67) dated 29th April 2013 given to the applicant by the 1st respondent.
  • An order of prohibition is issued restraining the respondents from demanding customs duty (Ksh 1,238,884.67) from the applicant based on the demand of duty dated 29/4/2013 over the lost transit goods.