Kenya Revenue Authority Commissioner of Customs & Excise & 2 others v King-Bird (Kenya) Limited [2014] KECA 567 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Invocation of jurisdiction under Rule 5(2)(b)
The applicants satisfied the procedural requirement by lodging an appropriate notice of appeal.
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).
Arguability of the intended appeal
The intended appeal was arguable; the first substantive requirement was met.
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.
Nugatory test
The applicants failed to establish that a successful appeal would be rendered nugatory; the second requirement was not met and the application was dismissed.
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.
Legal principles established
#- 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
#- 1.The applicants' Notice of motion dated 27th November 2013 seeking stay of execution and stay of further proceedings was dismissed
- 2.Costs of the application awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.