Kenya Revenue Authority & 2 others v Darasa Investments Ltd (Civil Appeal 24 of 2018) [2018] KECA 358 (KLR)
The bottom line
#Kenya's Court of Appeal held that disputed facts, like conflicting shipping dates, must be resolved through tax appeals, not judicial review, and businesses must keep consistent documentation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the learned Judge have jurisdiction to entertain the judicial review proceedings?
- 2.Was the appellants' decision contained in the letter dated 22nd November, 2017 amenable to judicial review as sought by the respondent?
- 3.Did the learned Judge properly exercise his discretion in issuing the orders he did?
Key legal issues
#Whether the High Court had jurisdiction despite non-exhaustion of statutory remedies under the EACCMA and the Tax Appeals Act
The respondent's position that the alternative remedies related only to quantum of tax was wrong; any decision of the Commissioner is reviewable under s.229 EACCMA and appealable to the Tribunal. However, non-exhaustion is not an absolute bar and exemption may be granted in exceptional circumstances under s.9(4) FAAA.
The Court held the wording of ss.229 EACCMA and 12 of the Tax Appeals Act covers any decision of the Commissioner, not merely quantum. Yet s.9(4) of the Fair Administrative Action Act permits a court, on its own motion or on application, to exempt a party from exhausting alternative remedies in exceptional circumstances, and the dispute here, alleging arbitrariness, appeared on its face to fall within judicial review.
Whether the appellants' decision of 22nd November 2017 was amenable to judicial review
The decision was amenable in principle, but the respondent was heard and given reasons, and the court cannot sit as an appeal over the administrator's mandate.
The respondent had an opportunity to be heard through the request to clarify inconsistencies and responded by letter of 21st November 2017. The decision letter set out the reasons for the refusal. Determining whether the decision was right or wrong was outside judicial review; the court examines only the process unless breach of law, impropriety or unreasonableness is established.
Whether judicial review orders could issue on disputed facts
They could not; the Judge erred in issuing orders while the central question of the date of loading remained unresolved, and the respondent failed to discharge its evidential burden under s.107(1) of the Evidence Act.
Two sets of Bills of Lading (15th July 2017 in Brazil and 17th October 2017 in Dubai) and a Certificate of Conformity showing production in August/September 2017 rendered the loading date uncertain. The Judge himself acknowledged the dispute yet delved into evidence, including letters authored during litigation, thereby substituting his opinion for that of the administrator. Disputed facts belong in a trial with discovery and cross-examination.
Whether the appellants took irrelevant considerations into account
No; scrutinizing requisite shipping documents was directly relevant to the exemption conditions.
The Bill of Lading date is prima facie evidence of loading date, and the inconsistencies in documents went to the very condition in the amended Gazette Notice. Examining those documents did not amount to irrelevant considerations under the Wednesbury standard.
Legal principles established
#- Jurisdiction cannot be conferred by consent or acquiescence and may be raised at any stage of proceedings, even on appeal
- Where a statute provides an alternative dispute-resolution mechanism, a party ought ordinarily to exhaust it before invoking judicial review; exemption is available only in exceptional circumstances
- Judicial review is concerned with the decision-making process, not the merits of the decision
- Judicial review remedies are not available where material facts are in dispute
- The date on a Bill of Lading is prima facie evidence of the date the goods were loaded onto a vessel
- Legitimate expectation cannot arise where the party failed to provide clear evidence satisfying the conditions of the representation
Court orders
#- 1.The appeal is allowed
- 2.The orders issued by the learned Judge in the ruling dated 22nd February, 2018 are set aside and substituted with an order dismissing the respondent's application
- 3.Each party to bear its own costs both in the High Court and in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Judicial review application before Ogola, J.
- Jurisdiction invoked
- First appeal against High Court judicial review ruling, under the Law Reform Act and Appellate jurisdiction of the Court of Appeal
Relief refused
#Certiorari quashing the decision to levy duty of Kshs. 2,548,542,325
The appeal succeeded and the judicial review orders were set aside; the respondent had not established the consignment was loaded within the exemption period
Prohibition against levying duty beyond amounts already paid
Judicial review remedies not available on disputed facts
Mandamus compelling duty-free clearance of the sugar consignment
The respondent failed to discharge its evidential burden of proving loading within the exemption period
Claim of legitimate expectation to duty-free clearance
The 2nd appellant found the respondent did not provide clear evidence of the time of loading, so no legitimate expectation arose
Claim of discrimination vis-à-vis 13 other importers
No evidence that the other importers' documents had the same inconsistencies
Costs
Each party to bear its own costs both in the High Court and in this appeal, owing to the public-interest nature of the matter (drought-relief sugar importation)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Based on the foregoing, we find that the learned Judge erred in holding that the appellants had consented and/or acquiesced to the court's jurisdiction by participating in the judicial review proceedings.
As we have set out above, judicial review is concerned with the decision making process and not the merits of the decision in respect of which the application for judicial review is made.
We are also of the view that it has now become a settled principle that judicial review remedies are not available in matters where facts are disputed.
Accordingly, the appeal herein has merit and is hereby allowed. We hereby set aside the orders issued by the learned Judge in the ruling dated 22nd February, 2018 and substitute the same with an order dismissing the respondent's application.
we direct each party to bear its own costs both in the High Court and in this appeal.
Issues in the judgment
#The impugned letter is referred to variously as Gazette Notice No. 9802 and No. 9801 in different passages
The exemption period is inconsistently rendered as commencing 12th May and 11th/1st May in different parts of the judgment ("dated 41 October, 2017" also appears as an OCR-style typo for 4th October)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Manyonyi v African Medical and Research Foundation (Civil Appeal 330 of 2019) [2026] KECA 101 (KLR)[2026] KECA 101 (KLR)23 Jan 2026
- Mtai & 9 others v Anglican Church of Kenya & 2 others (Appeal E008 of 2024) [2025] KEELRC 1988 (KLR)[2025] KEELRC 1988 (KLR)3 Jul 2025applied
- Wayo & another (Suing on Behalf of the Estate of Benjamin Wayo Sailoki - Deceased) v Bwire (Civil Appeal E033 of 2022) [2025] KECA 866 (KLR)[2025] KECA 866 (KLR)7 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority & 2 others v Darasa Investments Ltd (Civil Appeal 24 of 2018) [2018] KECA 358 (KLR)", Case Analysis (2018). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/358/eng@2018-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.