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Court of AppealDismissedCivil Appeal No. 116 of 2013· [2017] KECA 288 (KLR)

Republic v Kenya Revenue Authority Ex-parte Alltex EPZ Limited [2017] KECA 288 (KLR)

Court of Appeal
29 September 2017
3,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that businesses remain liable for customs duty when their authorised clearing agents commit fraud, even if the owners knew nothing.

What this practically means

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Executive summary

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Alltex EPZ Limited, an export processing zone operator licensed under the East African Community Customs Management Act, executed a security bond enabling duty-free importation of raw materials for its garment business. In 2003 its employee and duly authorised customs agent, Peter Muthenya Muindi, used the security bond to fraudulently clear goods not destined for the EPZ, causing loss of duty of Kshs 3,413,378, escalating with penalties and interest to Kshs 6,561,303. The Kenya Revenue Authority demanded payment and issued an agency notice to the appellant's bankers. Alltex sought certiorari and prohibition in the High Court, contending it was not liable for the criminal acts of its employee. Majanja J dismissed the application, holding the appellant liable for the acts of its duly authorised agent under section 148 of the Act. On appeal, the Court of Appeal rejected the appellant's reliance on common law agency principles, reiterating that under section 3(1)(c) of the Judicature Act common law and equity apply only where no statute governs, and that the Act exhaustively addresses owner-agent liability. The court held that under sections 147 and 148 the owner who authorises an agent is liable for the agent's acts and declarations; the agent's personal liability does not relieve the owner, and the proviso on absence of consent protects only against imprisonment, not duty liability. The agent's declaration holding out Alltex as owner bound it as if it had made the representation itself. The court aligned itself with the High Court's interpretations in the African Boot and SDV Transami cases and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether a principal is liable for duty on goods fraudulently imported by its duly authorised agent under the East African Community Customs Management Act

Holding

Yes. The Act expressly and exhaustively governs the owner-agent relationship; the owner who authorised the agent is liable for the agent's acts and declarations and the agent's liability does not relieve the owner.

Reasoning

Sections 145 to 148 of the Act comprehensively address the relationship between owner and agent. The agent's declarations and representations on the owner's behalf are in law the owner's own. The inclusive definition of owner covers one held out as owner, importer or agent. Section 147 deems the agent the owner but its proviso preserves the owner's liability; section 148 makes the owner liable for the agent's acts, with the no-consent proviso limited to imprisonment. The High Court's interpretation was correct.

p. 5
02

Whether common law principles on principal and agent can displace an express statute

Holding

No. Common law and doctrines of equity under section 3(1)(c) of the Judicature Act apply only in so far as the Constitution or a statute does not apply.

Reasoning

The Judicature Act creates a hierarchy of norms: Constitution first, then statutes, then common law, equity and statutes of general application. Where legislation expressly and comprehensively covers an issue, courts cannot invoke common law or equity to contradict the Kenyan statute. The appellant's liability therefore falls to be determined solely under the Act, not under common law agency principles such as those in Warren v Henlys.

p. 4
03

Whether the appellant was the owner of the goods although the import documents were forged by its agent

Holding

Yes. It suffices under the Act's definition that a person holds himself out, or is held out by his authorised agent, as owner; the agent's representation bound the appellant.

Reasoning

The Act defines owner using the word 'include', so the definition is not limited to the named persons, and actual ownership is unnecessary. Whatever the owner could do regarding declarations, its agent could do on its behalf. Where the agent held out and represented the appellant as owner of the goods, that was as effective in law as if the appellant had done so itself, triggering liability for the resulting duty.

p. 5
04

Whether the respondent's tax demand was irrational and amenable to judicial review under Wednesbury principles

Holding

The appeal on this ground failed; the respondent had a statutory mandate and there was no basis for judicial review orders.

Reasoning

The respondent has an express statutory duty to collect taxes and, in the absence of evidence of abuse of power, judicial review orders could not issue to stop it from discharging its duties. The claim rested on the contention that the appellant was not liable for its agent's fraud, which the court rejected on the statutory provisions, so the demand was lawful.

p. 3

Legal principles established

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  • Courts in Kenya cannot ignore express statutory provisions and supplant them with common law principles; once an issue is expressly and comprehensively provided for by legislation, common law, equity and statutes of general application cannot contradict the Kenyan statute.
  • Under sections 147 and 148 of the East African Community Customs Management Act, an owner of goods who authorises an agent is liable for the agent's acts and declarations, including fraudulent declarations by the agent, and the agent's own liability does not relieve the owner; the proviso protecting an owner who did not consent applies only to imprisonment, not to duty liability.

Court orders

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  1. 1.Dismissal of the appeal
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • East African Community Customs Management Actsection 160
  • East African Community Customs Management Actsection 145(1)
  • East African Community Customs Management Actsection 146
  • East African Community Customs Management Actsection 147
  • East African Community Customs Management Actsection 148
  • East Africa Customs Management Regulations, 2006regulation 147
  • Export Processing Zones Act
  • Judicature Actsection 3(1)(c)
  • Penal Code
  • Customs and Excise Act
  • Criminal Procedure Codesection 201

Cases cited (6)

  • Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
    [1948] 1 KC 223
  • Warren v. Henlys Limited
    [1948] 2 All ER 935
  • Uxbridge Permanent Benefit Building Society v. Pickard
    [1939] 2 KB 248
  • David Sironga ole Tukai v. Francis arap Muge & Others
    CA No. 76 of 2014
  • Republic v Kenya Revenue Authority ex parte African Boot (K) Ltd
    HC Misc, App. No. 54 of 2010
  • Republic v. Commissioner of Customs Services ex parte SDV Transami (K) Ltd
    HC Misc. App No. 81 of 2011
On appeal from
High Court at Nairobi
HC Misc. App. No. 709 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute; the judgment does not cite a specific constitutional or statutory provision for jurisdiction

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, "Republic v Kenya Revenue Authority Ex-parte Alltex EPZ Limited [2017] KECA 288 (KLR)", Case Analysis (2017). Civil Appeal No. 116 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/288/eng@2017-09-29

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