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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application 260 of 2012· [2013] KECA 383 (KLR)

F & S Scientific Limited & 1 other v Kenya Revenue Authority & 1 other

Court of Appeal
8 March 2013
1,395 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled it can only grant stays of execution, stays of proceedings, or injunctions—not 'stay of implementation'—and tax appeals need evidence of harm.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Karanja, Ouko and Gatembu Kairu, JJAA) delivered a single ruling dismissing an application by F & S Scientific Limited for a stay of the 'implementation' of the respondents' decision to demand tax of Kshs. 4,959,125, later grown to Kshs. 6,446,862.50 with penalties and interest. The applicant had lost a judicial review application before Githua, J. of the High Court, who found none of the reliefs of certiorari, prohibition and mandamus available and dismissed the motion; a notice of appeal was lodged and this Rule 5(2)(b) motion followed. The respondents objected that no injunction can issue against them under section 3(2)(a) of the Kenya Revenue Authority Act read with section 16(1) of the Government Proceedings Act, and that any tax paid would be refundable under section 144 of the East Africa Community Customs Management Act, 2004 should the appeal succeed. The Court held it had no jurisdiction: Rule 5(2)(b) permits only stay of proceedings, stay of execution and injunction, and 'stay of implementation' is none of these. Moreover, the High Court having simply dismissed the motion, there was no positive order capable of being stayed. Even assuming the appeal arguable, the applicant failed to prove by evidence that payment would paralyse its operations or render the appeal nugatory, and the refundability of the tax defeated that contention. The motion was dismissed with costs in the intended appeal. The decision below was not disturbed, as this was an interlocutory application in relation to a intended appeal.

Key legal issues

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01

Scope of orders available under Rule 5(2)(b)

Holding

The Court cannot grant an order of 'stay of implementation', which is not among the three orders available under Rule 5(2)(b).

Reasoning

Rule 5(2)(b) permits only an order staying proceedings, an order staying execution of the superior court's order, and an injunction. The inherent powers of the Court revolve around these aspects only. The prayer framed as 'stay of implementation' of the respondents' decision does not correspond to any of these species of order, so the Court has no jurisdiction to entertain it.

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02

Absence of a positive order capable of being stayed

Holding

Where the High Court has simply dismissed a judicial review motion without ordering any party to do or refrain from doing anything, there is no enforceable order that can be stayed.

Reasoning

The High Court dismissed the applicant's judicial review motion seeking certiorari, prohibition and mandamus with no orders as to costs. It did not order the applicant to pay the taxes demanded. Consequently, even if the prayer were read as one for stay of execution, there is no positive and enforceable order of the superior court that could be the subject of a stay.

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03

Proof of nugatory prospects

Holding

The applicant failed to demonstrate by evidence that payment of the tax would paralyse its operations; a mere assertion is insufficient, and any tax paid is refundable under section 144 of the EACCMA if the appeal succeeds.

Reasoning

The applicant's director merely deposed that agency notices, distraint orders and attachment were likely, paralysing operations. No evidence such as a balance sheet was offered to support this. Further, the amount claimed had risen from Kshs. 4,959,125 to Kshs. 6,446,862.50 due to penalties and interest, and the respondents are legally bound to refund sums paid should the appeal succeed under section 144 of the East African Community Customs Management Act.

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Legal principles established

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  • Under Rule 5(2)(b) of the Court of Appeal Rules, the Court can make only three orders: stay of proceedings, stay of execution, and injunction; its inherent powers are confined to these
  • No order of stay of execution or injunction can be granted where the superior court dismissed the application and made no positive order against any party
  • A party contending that its operations will be paralysed and the appeal rendered nugatory must prove that likelihood by evidence

Court orders

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  1. 1.The applicant's motion dated 18th October, 2012 is dismissed
  2. 2.Costs shall be in the intended appeal
On appeal from
High Court of Kenya at Nairobi
HC J.R. Misc. Appl. No. 121 of 2011
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules

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, "F & S Scientific Limited & 1 other v Kenya Revenue Authority & 1 other", Case Analysis (2013). Civil Application 260 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/383/eng@2013-03-08

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