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Court of AppealPartially AllowedCivil Appli. Nai 94 of 2007 (UR 61/07)· [2007] KECA 34 (KLR)

COMMISSIONER OF CUSTOMS & 2 others v AMIT ASHOK DOSHI & 2 others [2007] KECA 34 (KLR)

Court of Appeal of Kenya
8 June 2007
2,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal let vehicle owners keep their cars if they post Ksh.13.1 million bank security while a customs duty dispute is appealed.

What this practically means

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Executive summary

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This ruling determines a notice of motion under rule 5(2)(b) of the Court of Appeal Rules by the Commissioner of Customs, the Kenya Revenue Authority and the Registrar of Motor Vehicles seeking a stay of orders of the High Court at Mombasa (Sergon, J) of 30 March 2007 in H.C. Misc. Civil Application No. 520 of 2006, which quashed public notices published in the Standard and Nation of 26 and 28 May 2006 and prohibited the applicants from seizing four motor vehicles for forfeiture; alternatively, security for assessed import duties of Ksh.13,123,279 pending an intended appeal. The respondents, second owners, had bought the vehicles from importers and registered them after being assured duty was paid; post-import investigations by the Kenya Revenue Authority concluded the vehicles were uncustomed and that importers had forged bank receipts to obtain clearance, prompting the notices under sections 234 and 236 of the East African Community Customs Management Act 2004. The High Court quashed the notices as unreasonable, finding no connection between the evidence and the applicants, and its decision applied also to Misc. Nos. 521 and 523 of 2006. Restating the settled twin principles - an arguable intended appeal and the nugatory factor - the Court (O’Kubasu, Githinji and Onyango Otieno, JJA) held the supervisory reach of courts over statutory powers, and the Judge's finding on notices addressed to importer/owners/clearing agents, arguable, and found the appeal nugatory absent relief through depreciation, sale or removal of the vehicles. Holding the two prayers mutually exclusive, the Court allowed the application only to the extent of the alternative prayer: bank security of Ksh.13,123,279 within 45 days, retention of the vehicles upon compliance, and a stay of the superior court orders upon default. Costs were made costs in the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable under rule 5(2)(b).

Holding

Yes. The extent to which a court in its supervisory powers may control the exercise of statutory powers donated to government authorities, particularly the revenue authority, is arguable, as is the learned Judge's finding that there was no connection between the evidence and the applicants.

Reasoning

The Court identified the supervisory reach of courts over statutory powers donated to the revenue authority as certainly arguable. It further noted that the Judge found the reasons for the notices good but unreasonable for want of connection between the evidence and the applicants, even though the notices were addressed to importer/owners/clearing agents and the respondents' ownership by transfer was undisputed. Whether that finding on fact and law was tenable was arguable, and even one arguable point sufficed.

p. 4
02

Whether the intended appeal, if successful, would be rendered nugatory absent the orders sought.

Holding

Yes. The vehicles would depreciate, could be sold, and could pass to third parties who might remove them from the jurisdiction, so that seizure for forfeiture at the end of the appeal would yield nothing of economic value.

Reasoning

The Court accepted the vehicles were depreciating daily in the respondents' hands and, although within the jurisdiction, their safety from accidents could not be vouched for and their sale could not be prevented. Once sold, third-party owners might remove them from the jurisdiction. Security for the assessed duty would avert the risk of a successful appeal being rendered a pyrrhic victory.

p. 4
03

Whether the Court should grant the stay sought or the alternative security for assessed import duties.

Holding

The two prayers are mutually exclusive; the Court granted the alternative prayer for security, with a stay to issue only upon default.

Reasoning

Counsel for the applicants conceded the security prayer was an alternative to the stay prayer, and the Court agreed that although not specifically stated in the notice of motion it must of necessity be alternative, since the applicants could not both seize the vehicles and take security for the assessed duty. The Court therefore granted bank security of Ksh.13,123,279 within 45 days, permitted retention of the vehicles upon compliance, and provided for a stay of the superior court's orders upon default.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin principles that the intended appeal is arguable (not frivolous) and that, unless the orders sought are granted, the intended appeal, if it eventually succeeds, will be rendered nugatory.
  • The jurisdiction of the Court of Appeal under rule 5(2)(b) is original and discretionary.
  • A single arguable point suffices to satisfy the arguability limb of the rule 5(2)(b) test.
  • Prayers for seizure of goods (by way of stay enabling forfeiture) and for security of assessed duties are mutually exclusive alternatives and cannot be granted together.

Court orders

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  1. 1.Application allowed to the extent that the alternative prayer is granted: the respondents to provide bank security from a reputable bank in the sum of Ksh.13,123,279/= within 45 (fourty five) days of the date of the ruling to secure payment to the applicants of the assessed import duties upon the subject motor vehicles.
  2. 2.Subject to compliance with the security order, the respondents to retain the vehicles till the intended appeal is filed, heard and determined.
  3. 3.If the respondents fail to comply with the security order, there shall be a stay of the order of the superior court made on 30th March 2007 and the applicants will be at liberty to proceed and enforce the provisions of the law as regards their statutory powers.
  4. 4.Costs in the intended appeal.

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • East African Community Customs Management Act 2004Sections 234(2), 234(3) and 236 (also cited as sections 234 and 236)

Cases cited (4)

  • Githunguri vs. Jimba Credit Corporation Ltd. (No. 2)
    (1988) KLR 838
  • J.K. Industries Ltd. vs. Kenya Commercial Bank Ltd.
    (1982-88) 1 KAR 1688
  • Reliance Bank Limited (In Liquidation) vs. Norlake Investments Limited
    Civil Application No. Nai. 98 of 2002 (unreported)
  • Al-Mahra Limited vs. Premier Foods Industries Limited
    Civil Application No. Nai. 163 of 2006
On appeal from
High Court of Kenya at Mombasa
H.C. Misc. Civil Application No. 520 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay/security pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "COMMISSIONER OF CUSTOMS & 2 others v AMIT ASHOK DOSHI & 2 others [2007] KECA 34 (KLR)", Case Analysis (2007). Civil Appli. Nai 94 of 2007 (UR 61/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/34/eng@2007-06-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.