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Court of AppealAllowedCivil Appeal No. 67 of 2017

Krish Commodities Limited v Kenya Revenue Authority [2018] KECA 415 (KLR)

Court of Appeal
27 June 2018
3,952 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal quashed KRA's Kshs.26 million retroactive duty demand, ruling that even tax authorities must act fairly and promptly when using their statutory powers.

What this practically means

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Executive summary

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Krish Commodities Limited imported rice in 2008 and 2009 which was cleared by the Kenya Revenue Authority through its Simba Tradex System, with duty assessed and paid. Nearly four years later, following a post clearance audit, KRA demanded short levied duty of Kshs.26,215,578, contending a 35% rate had been applied instead of 75%, and detained about ten containers. Krish's judicial review application for certiorari and prohibition was dismissed by Emukule, J. on 6th December 2016, who held KRA acted within its mandate under Sections 235, 236 and 135 of the EACCMA. On appeal, the Court of Appeal framed two issues: the applicability of the EACCMA in Kenya and the amenability of KRA's decision to judicial review. It agreed with the High Court that the EACCMA is valid and enforceable Kenyan law, deriving force from Section 8 of the Treaty for the Establishment of the East African Community Act and taking precedence over Partner States' laws. However, it held the learned Judge approached the review question wrongly: the pertinent issue was not whether KRA had power, but whether its decision-making process was reasonable, fair and compliant with Article 47. KRA offered no explanation for the four-year delay, rendering the demand irrational and an abuse of power. Further, because KRA's own system assessed the duty and its officers verified the entries, a legitimate expectation arose that the assessment was correct. The Court of Appeal allowed the appeal, set aside the High Court judgment, issued certiorari and prohibition, and awarded the appellant costs in both courts.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the East African Community Customs Management Act (EACCMA) is valid and applicable law in Kenya
  2. 2.Whether the respondent's decision demanding short levied duty was amenable to judicial review

Key legal issues

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01

Applicability of the EACCMA in Kenya

Holding

The EACCMA is valid and enforceable Kenyan law, deriving force from Section 8 of the Treaty for the Establishment of the East African Community Act and taking precedence over Partner States' laws.

Reasoning

The court endorsed the learned Judge's finding that the EACCMA derives force from Section 8 of the Treaty for the Establishment of the East African Community Act (No. 2 of 2000), under which Acts of the Community have force of law in Kenya upon publication in the East African Gazette. It corrected the date of publication to 1st January 2005 and noted that the Finance Acts of 2005 and 2007 implemented the EACCMA domestically, and that Section 253 gives it precedence over Partner States' laws.

p. 3
02

Judicial review of the respondent's decision-making process

Holding

The learned Judge framed the wrong question; the real issue was the fairness, reasonableness and promptness of the process, not the power to audit and demand duty.

Reasoning

The court held that it was a given that KRA had power under the EACCMA to conduct post clearance audits and demand short levied duty; the pertinent issue was whether the manner of decision-making conformed with Article 47. KRA gave no explanation for demanding short levied duty about four years after clearance, which the court held was irrational and an abuse of statutory power, applying the Wednesbury unreasonableness standard.

p. 4
03

Legitimate expectation arising from the Simba System assessment

Holding

Since the respondent's Simba System set the duty rate and its officers verified the entries and consignments, a legitimate expectation arose that the assessed duty was correct; the respondent could not pass the buck to the appellant.

Reasoning

The court found it common ground that the applicable rate and assessment were determined by the respondent's Simba System, with the appellant merely inputting the tariff number and country of origin. The respondent's officers verified the entries and inspected the consignments without query. Having verified the rate and assessed duty as correct, the respondent could not later demand the difference from the appellant on the basis that the appellant knew the correct rate.

p. 4

Legal principles established

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  • An appellate court may interfere with the exercise of discretion by a lower court only where the judge misdirected himself in some matter and arrived at a wrong decision, or was clearly wrong in the exercise of discretion resulting in misjustice.
  • Even where a public authority has statutory power, the pertinent question in judicial review is whether the decision-making process was reasonable, fair and in conformity with Article 47 of the Constitution.
  • A statutory time limit for demanding short levied duty does not permit an authority to delay making the demand without sufficient explanation; unexplained late demands are irrational.
  • Where the authority's own system assessed the duty and its officers verified the entries, a legitimate expectation arises that the assessed duty was correct.

Court orders

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  1. 1.An order of certiorari quashing the decision contained in the respondent's letters making demands for the sum of Kshs.26,215,578 or any other amounts on account of duty allegedly uncollected due to the application of a lower duty rate
  2. 2.An order of prohibition prohibiting the respondent from continuing to demand monies on account of the alleged underpayment of duty/taxes in respect of the listed rice consignment entries
  3. 3.Costs of the appeal and of the High Court awarded to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
H.C Misc. Appl. No. 59 of 2013
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the exercise of judicial discretion by the High Court in a judicial review application (Mbogo v Shah parameters)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order of certiorari is hereby issued quashing the decision contained in the respondent’s letters making demands for the sum of Kshs.26,215,578 or any other amounts on account of duty allegedly uncollected due to the application of a lower duty rate upon which such wrongful and unlawful action is premised.
p. 5Final orders - certiorari
An order of prohibition is hereby issued prohibiting the respondent from continuing to wrongfully demand from the applicant any monies on account of the alleged underpayment of duty/taxes
p. 5Final orders - prohibition
It is axiomatic that statutory power can only be exercised validly if exercised reasonably and not arbitrarily or in bad faith.
p. 5Exercise of statutory power
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
p. 4Article 47 fair administrative action
The appellant shall also have costs of this appeal and at the High Court.
p. 5Costs

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, "Krish Commodities Limited v Kenya Revenue Authority [2018] KECA 415 (KLR)", Case Analysis (2018). Civil Appeal No. 67 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/415/eng@2018-06-27

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