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Court of AppealPartially AllowedCivil Application No. NAI. E 001 of 2020· [2020] KECA 351 (KLR)

Kenya Revenue Authority v Akaba Investments Limited [2020] KECA 351 (KLR)

Court of Appeal
4 September 2020
1,971 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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Kenya's Court of Appeal paused enforcement of a massive damages award against KRA until its appeal is decided, sparing the tax authority any deposit requirement.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi on an application under Rule 5(2)(b) of the Court of Appeal Rules by the Kenya Revenue Authority seeking stay of execution of a High Court judgment of Otieno, J. delivered at Mombasa on 5th June 2020 in Mombasa High Court Civil Suit No. 47 of 2009. The High Court had awarded Akaba Investments Limited special damages of USD 1,132,460.45 and Kshs. 405,108,353.30 with interest and costs, arising from the Authority's refusal to clear the respondent's COMESA sugar consignments duty-free in 2007. The dispute had a protracted history, including earlier judicial review proceedings dismissed by Nyamu, J. and appeals in which the Court of Appeal in Civil Appeal No. 89 of 2007 directed release of the sugar duty-free, deemed applicable to the respondent's appeal by a consent order of 17th November 2008. The Court of Appeal restated the two well-settled principles governing Rule 5(2)(b) applications - an arguable appeal and nugatory value - applying the Kagunyi Thande decision. It found arguable points on pleading and proof of special and exemplary damages, availability of the COMESA quota, lawfulness of the Authority's actions and mitigation. On the nugatory limb, the court noted the colossal money decree and the respondent's failure to show ability to repay, rejecting the respondent's demand for deposit of the decretal sum because the Authority, as a government revenue body, is unlikely to lack funds to satisfy the decree. The court granted the stay of execution and consequential orders pending the intended appeal, with costs of the application to abide the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court was satisfied that arguable points had been demonstrated, including whether the claims for special and exemplary damages were pleaded and proved, quota availability, unlawfulness of the applicant's actions, and mitigation.

Reasoning

Reviewing the material, rival submissions and authorities, the court identified several arguable grounds: whether the respondent's entire claim for special and exemplary damages was pleaded and proved; whether the COMESA quota was available to the respondent; whether the applicant's actions were unlawful or unreasonable so as to warrant the awards; and whether the trial judge failed to consider mitigating circumstances. These suffice because an arguable appeal need not succeed.

p. 3
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The court found the nugatory limb satisfied: the decree was a colossal money decree and the respondent did not show willingness or ability to repay if the appeal succeeded.

Reasoning

This was a money decree of colossal sums (USD 1,132,460.45 and Kshs. 405,108,353.30). The respondent did not indicate willingness or ability to repay the decretal amount in the event of success. The respondent's proposal to deposit the sum in a joint account was rejected because the applicant, as a revenue-collecting government body, is unlikely to lack funds to settle the decree if the appeal fails.

p. 3

Legal principles established

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  • An applicant for stay of execution under Rule 5(2)(b) must first establish an arguable appeal and, second, that the appeal would be rendered nugatory if the stay is not granted.
  • An arguable appeal need not be one that must succeed; it is one that merits full argument before the court.

Court orders

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  1. 1.Stay of execution of the judgment delivered at Mombasa on 5th June 2020 in Civil Suit No. 47 of 2009 and any consequential orders, pending the hearing and determination of the applicant's intended appeal
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (7)

  • Housing Finance of Kenya vs. Sharok Kher Mohamed Ali Hirji & Another
    [2015] eKLR
  • George Otieno Gache & Another vs. Judith Akinyi Bonyo & 5 Others
    [2017] eKLR
  • Hashmukhlal Virchand Shah & 2 others vs. Investment & Mortgages Bank Limited
    [2014] eKLR
  • Reliance Bank Ltd versus Nor Lake Investment Ltd
    [2002] IEA 227
  • Ishmael Kagunyi Thande vs. Housing Finance Company Limited
    Civil Application No. 156 of 2006 (UR)
  • Civil Appeal No. 89 of 2007
  • Civil Appeal No. 231 of 2007
On appeal from
High Court of Kenya at Mombasa
MSA H.C.C.S. No. 47 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending an intended appeal)

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 v Akaba Investments Limited [2020] KECA 351 (KLR)", Case Analysis (2020). Civil Application No. NAI. E 001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/351/eng@2020-09-04

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