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Court of AppealDismissedCivil Application No. NAI 322 of 2013 (UR 236 of 2013)· [2014] KECA 567 (KLR)

Kenya Revenue Authority Commissioner of Customs & Excise & 2 others v King-Bird (Kenya) Limited [2014] KECA 567 (KLR)

Court of Appeal
30 May 2014
1,883 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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The Court of Appeal refused KRA's bid to pause paying King-Bird's legal costs because the company could afford to refund them if the appeal later succeeded.

What this practically means

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Executive summary

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This was an interlocutory ruling of the Court of Appeal at Nairobi (Waki, Nambuye and G.B.M. Kariuki, JJ.A) on the Kenya Revenue Authority's Notice of motion dated 27th November 2013, brought under Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules. The applicants sought a stay of execution of the ruling of W.K. Korir J delivered on 27th March 2012 in H.C. Misc. Civil Appl. No. 243 of 2010, by which the High Court ordered the discharge of a bank guarantee of Kshs.2,966,079 and awarded costs to King-Bird (Kenya) Limited (later taxed at Kshs.798,180), and a stay of further proceedings in Judicial Review Application No. 157 of 2013 in which the respondent sought mandamus, pending an intended appeal founded on eighteen draft grounds. The Court restated the settled parameters for relief under Rule 5(2)(b), drawing on Safaricom Limited v Ocean View Beach Hotel Limited, Equity Bank Limited v West Link MBO Limited and Githunguri v Jimba Credit Corporation Limited (No.2): the applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory if no stay is granted, and both ingredients must be satisfied. The Court found the notice of appeal duly lodged and held that the intended appeal was arguable on issues including whether fines and penalties can be imposed absent a conviction and whether the applicants acted in excess of jurisdiction. However, because the respondent was a viable trading company able to refund the taxed costs, the nugatory ingredient failed. The application was dismissed with costs to the respondent.

Key legal issues

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01

Invocation of jurisdiction under Rule 5(2)(b)

Holding

The applicants satisfied the procedural requirement by lodging an appropriate notice of appeal.

Reasoning

The Court, applying Safaricom Limited v Ocean View Beach Hotel Limited, held that where no actual appeal has been lodged, there must at least be an intention to appeal manifested by lodgment of a notice of appeal. The applicants had duly filed and served a notice of appeal against the High Court decision, so the Court was procedurally seized under Rule 5(2)(b).

p. 3
02

Arguability of the intended appeal

Holding

The intended appeal was arguable; the first substantive requirement was met.

Reasoning

Revisiting the eighteen draft grounds, the Court found the issues - whether fines and penalties can be imposed absent a conviction, whether the respondent committed any crime, whether the applicants acted in bad faith, unreasonably and maliciously, and whether they acted in excess of jurisdiction - were not frivolous and worthy of the court's interrogation.

p. 4
03

Nugatory test

Holding

The applicants failed to establish that a successful appeal would be rendered nugatory; the second requirement was not met and the application was dismissed.

Reasoning

The respondent was a viable trading company, admitted by the applicants; demands for levies and duty up to about Kshs.3,000,000 had been met; and the security of Kshs.2,966,079 had been deposited and refunded at the conclusion of the judicial review proceedings. The respondent thus demonstrated financial ability to refund the taxed costs of Kshs.798,180 if paid out, so the appeal would not be rendered nugatory.

p. 4

Legal principles established

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  • Under Rule 5(2)(b), both ingredients - an arguable appeal and the nugatory test - must be satisfied before a litigant can access relief; satisfying only one is insufficient.
  • An arguable appeal need not be one that must succeed; a solitary bona fide arguable point suffices.
  • Where the respondent is a viable trading company able to refund any sums paid, an appeal on a money/costs claim will generally not be rendered nugatory.

Court orders

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  1. 1.The applicants' Notice of motion dated 27th November 2013 seeking stay of execution and stay of further proceedings was dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII Rule 3
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 47(1), (2) and (3)
  • Court of Appeal RulesRule 74
  • Court of Appeal RulesRule 75

Cases cited (3)

  • Safaricom Limited versus Ocean View Beach Hotel Limited & 2 others
    Civil Application No. 327 of 2009 (UR)
  • Equity Bank Limited versus West Link MBO Limited
    Civil Application No. 78 of 2011 (UR)
  • Githunguri versus Jimba Credit Corporation Limited (No.2)
    [1988] KLR 838
On appeal from
High Court of Kenya at Nairobi (Milimani) Judicial Review Division
H.C. Misc. Civil Appl. No. 243 of 2010
Jurisdiction invoked
Rule 5(2)(b), 42 and 47(1), (2) and 3 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, "Kenya Revenue Authority Commissioner of Customs & Excise & 2 others v King-Bird (Kenya) Limited [2014] KECA 567 (KLR)", Case Analysis (2014). Civil Application No. NAI 322 of 2013 (UR 236 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/567/eng@2014-05-30

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