[2020] KECA 231 (KLR)
The Court found that the applicant, by filing an appeal before the Tax Appeals Tribunal after the High Court struck out its judicial review application for want of jurisdiction, had acknowledged the Tribunal's jurisdiction over the dispute. The Court held that pursuing the same issue in both the Court of Appeal and...
Source-derived case information.
- Citation
- [2020] KECA 231 (KLR)
- Parties
- Applicant: Van Den Berg Limited; Respondent: The Kenya Revenue Authority; Respondent: The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 214 of 2020
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- J Karanja
- Legal Topics
- Judicial Review, Tax Appeals Tribunal Jurisdiction, Injunction Pending Appeal, Certiorari and Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Van Den Berg Limited
Applicant
The Kenya Revenue Authority
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the High Court had jurisdiction to entertain a tax-related judicial review application instead of the Tax Appeals Tribunal.
- 2 Whether the applicant is entitled to an injunction pending appeal under Rule 5(2)(b) of the Court of Appeal Rules.
- 3 Whether the appeal would be rendered nugatory if the injunction is not granted.
Ratio Decidendi
The Court found that the applicant, by filing an appeal before the Tax Appeals Tribunal after the High Court struck out its judicial review application for want of jurisdiction, had acknowledged the Tribunal's jurisdiction over the dispute. The Court held that pursuing the same issue in both the Court of Appeal and the Tribunal amounted to an abuse of process. Since the dispute had already moved to the Tribunal, the refusal to grant an injunction would not render the appeal nugatory. The application for injunction therefore lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunction pending appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OUKO, (P), KARANJA & ASIKE-MAKHANDIA, JJ.A)
CIVIL APPLICATION NO. 214 OF 2020
BETWEEN
VAN DEN BERG LIMITED....................................................APPLICANT
AND
THE KENYA REVENUE AUTHORITY.....................1STRESPONDENT
THE ATTORNEY GENERAL......................................2NDRESPONDENT
(Being an application for injunction pending the determination of an intended appeal from the Ruling of the High Court of Kenya at Nairobi (J.M. Bwonwong’a, J.) dated 3rdFebruary, 2020 and delivered by (Hon. Lady Justice P. Nyamweya)on 14thMay, 2020
in
JR. Misc. Civil App. No. 165 of 2016)
**********
RULING OF THE COURT
The applicant took out judicial review proceedings in the High Court for orders of certiorari and prohibition against the 1st respondent in respect of some tax assessed at Kshs. 1,309,207,399 to be paid by the applicant.
The respondents filed a notice to object to the jurisdiction of the High Court to entertain a tax-related application, contending instead that such application can only be heard by the Tax Appeals Tribunal.
Bwonwong’a, J. heard the objection and upheld it with the result that the judicial review application was struck out with costs to the respondents.
The applicant has filed an appeal within which this application has been brought. Pending the hearing and determination of that appeal, the applicant seeks an order of temporary injunction arguing, in terms of Rule 5 (2)(b) of this Court’s Rules that the appeal is arguable and secondly, that without an order of injunction, the outcome of the appeal, if successful, will essentially have no worth, given the colossal sum demanded from the applicant.
The respondents’ reply to the application is completely misplaced as it is directed, not at this application, but all together at different application not before us; the one for contempt of court and argues that the applicant misunderstood the interim orders issued by this Court pending this ruling; that the applicant understood the order as directing the respondents to lift agency notices placed on the applicant’s accounts.
In both its written submissions and a replying affidavit sworn by Isaac Njogu Kariuki, the respondents have urged us to reject the application as having no merit; that the appeal is not arguable as the applicant has, in compliance with the ruling of Bwonwong’a, J. moved to the Tax Appeals Tribunal to challenge the decision of the 1st respondent; and that for that very reason, the appeal will not be rendered nugatory.
As alluded to our role in an application such as this is to consider whether the applicant has demonstrated the existence of an arguable appeal and whether the appeal will be rendered nugatory, should the appeal ultimately succeed without any conservatory measures in place. See Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] eKLR.
Although the applicant has lodged the appeal on 10 grounds, the only issue is really, whether the High Court lacked jurisdiction to hear the dispute. While that may not be an idle question, subsequent events show that it is not. It was deposed in the respondents’ affidavit in opposition to this application and averred in the submissions that subsequent to the impugned decision of the High Court, the applicant filed an appeal before the Tax Appeals Tribunal. This has not been controverted. We have satisfied ourselves from the annextures to the replying affidavit that indeed, the dispute has moved to the Tribunal.
The memorandum of appeal filed by the applicant in the Tribunal makes express reference to Bwonwong’a J’s decision as the reason for invoking the jurisdiction of the Tribunal. By that action, the applicant seems to have acknowledged that the Tribunal is perhaps where they should all have started. To engage this Court and the Tribunal at the same time with the same question is, in fact, an abuse of the process of the court.
We do not see how our refusal to issue an injunction will render the appeal nugatory in those circumstances. The application lacks merit and is accordingly dismissed with costs.
Dated and delivered at Nairobi this 6thday of November, 2020.
W. OUKO, (P)
………………….
JUDGE OF APPEAL
W. KARANJA
………………………….
JUDGE OF APPEAL
ASIKE-MAKHANDIA
………………..……….
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR