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Court of AppealPartially AllowedCivil Appeal No. 200 of 2003

Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] KECA 295 (KLR)

Court of Appeal
8 April 2011
2,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a judge can correct their own clear mistake in a judicial review case, reviving Nakumatt's tax challenge.

What this practically means

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Executive summary

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The Court of Appeal (Bosire, Githinji and Visram JJ.A) allowed an appeal against a ruling of Rimita J. (27th June 2003) declining to review his earlier order of 6th June 2003 refusing leave to apply for judicial review of a decision by the Commissioner of Value Added Tax disallowing input tax of Kshs. 163,650,415. The High Court had invoked section 33 of the Value Added Tax Act to hold it lacked jurisdiction, unaware that the section had been repealed by the Finance Act of 1998. The Judge refused review on the view that, absent express provision in the Law Reform Act, he had no power to review his own decision even where shown to be clearly wrong. The Court of Appeal held that the superior court had a residual power to correct its own mistake, particularly where the court itself, suo motu and without hearing the applicant on the point, precipitated the applicant's predicament and the limitation period for certiorari expired as a result. Following Aga Khan Education Service Kenya, it stressed that review jurisdiction at the leave stage is limited and to be exercised sparingly, in the clearest of cases, to obviate hardship to a blameless party. The court declined to decide whether Order 44 applies to Order 53 proceedings or to prescribe a procedure for such applications. The appeal was allowed, the 27th June 2003 ruling set aside, the review application allowed, and leave granted to apply for certiorari and mandamus within 21 days, with costs abiding the outcome of the intended motion.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the superior court had jurisdiction to review its own decision given on 6th June 2003 declining leave to apply for an order of judicial review, given that the Judge conceded he wrongly invoked section 33 of the Value Added Tax Act
  2. 2.Whether Order 44 of the Civil Procedure Rules applies to proceedings under Order 53 of the same Rules

Key legal issues

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01

Jurisdiction of the superior court to review its own erroneous leave decision in judicial review proceedings

Holding

The superior court had residual power to correct its own mistake; the court's error in invoking repealed section 33 of the VAT Act left the applicant without remedy, and review was available to obviate that hardship even though the Law Reform Act has no review provisions and the applicant may have cited a wrong provision.

Reasoning

The court reasoned that judicial review is meant to be a quick, inexpensive procedure and that limitation periods make errors at the leave stage especially prejudicial. Where the court itself, suo motu, raised a jurisdictional issue without hearing the applicant and decided it on a repealed provision, refusing review would be oppressive and an affront to common sense. Citing a wrong provision does not deprive the court of its corrective power.

p. 3
02

Whether Order 44 of the Civil Procedure Rules applies to Order 53 proceedings

Holding

Left open; the court expressly declined to determine whether Order 44 applies to proceedings under Order 53, resting its decision instead on the court's residual power to correct its own mistake.

Reasoning

The court noted this was the point of departure between the parties but declined to resolve it, stating the question should await another occasion. Its decision was anchored on the residual corrective power rather than the textual reach of Order 44.

p. 3
03

Whether Goldenberg v Kilach holds that review is unavailable under Order 53

Holding

No; that decision does not so hold.

Reasoning

The court respectfully disagreed with counsel's reliance on the Goldenberg case, holding it does not stand for the proposition that review is unavailable under Order 53, and that in clear cases courts should not decline jurisdiction merely because the law is silent.

p. 3

Legal principles established

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  • A superior court has residual power to correct its own mistake, even where the applicant cited a wrong provision of the law in the review application, and especially where the error was the court's own.
  • Review jurisdiction should be exercised sparingly, in very clear-cut cases, to obviate hardship and injustice to a party not to blame for the predicament.
  • Review of an ex parte grant or refusal of leave in judicial review proceedings is a very limited jurisdiction to be exercised sparingly and only in clear-cut cases.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the superior court dated 27th June 2003 set aside
  3. 3.In place thereof, an order allowing the application dated 10th June 2003 substituted and the dismissal order set aside
  4. 4.Appellant granted leave to bring an application for orders of certiorari and mandamus as prayed in the chamber summons dated 14th May 2003, to be filed within 21 days from the date of the judgment
  5. 5.Costs of the appeal and thrown away costs of proceedings before the superior court to abide the outcome of the yet to be filed motion; if the motion is not filed, each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C. Misc. Application No. 508 of 2003
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Law Reform Act and Civil Procedure Rules; appeal from ruling in judicial review leave proceedings

Relief refused

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Spelling out the correct procedure for approaching the court where the court erred at leave stage

The court declined to lay down a procedure because the issue was not fully addressed before it and such applications should be encouraged only in the clearest of cases

p. 3

Determination of whether Order 44 of the Civil Procedure Rules applies to proceedings under Order 53

The court deferred the question to a future occasion

p. 3

Costs

Costs of the appeal and the thrown away costs of proceedings before the superior court to abide the outcome of the yet to be filed motion; in the event the motion is not filed, each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result we allow the appeal, set aside the order of the superior court dated 27 th June 2003, and in place thereof substitute an order allowing the application dated 10 th June 2003, set aside the dismissal order and grant the appellant leave to bring an application for orders of certiorari and mandamus as prayed in the chamber summons dated 14th May 2003.
p. 3Final orders - appeal allowed, leave to apply for certiorari and mandamus granted
What is important is that the superior court in the matter before us had the residual power to correct its own mistake.
p. 3Residual power to correct own mistake
The process of review is intended to obviate hardship and injustice to a party who is, otherwise, not to blame for the circumstances he finds himself in.
p. 3Purpose of review jurisdiction
even though leave granted ex parte can be set aside on an application, that is a very limited jurisdiction and will obviously be exercised very sparingly and on very clear cut cases
p. 2Limited review of leave decisions in judicial review
The application to be filed within 21 days from the date of this judgment. The costs of this appeal, and the thrown away costs of proceedings before the superior court, to abide the outcome of the yet to be filed motion.
p. 3Directions and costs

Issues in the judgment

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minor

The judgment states the decision sought to be quashed was made on 13th March 2006, which is inconsistent with the chronology elsewhere showing the decision was made on 13th March 2003 and leave sought on 20th May 2003

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] KECA 295 (KLR)", Case Analysis (2011). Civil Appeal No. 200 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/295/eng@2011-04-08

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