Executive Super Rides Limited v Commissioner of Customs & 3 others; Pandya & another (Interested Parties) (Civil Appeal E065 of 2023) [2026] KECA 555 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the auction of an imported vehicle, confirming importers must first use tax dispute channels before going to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st and 2nd respondents followed the properly laid down legal procedure before auctioning the motor vehicle
- 2.Whether the EACCMA or the Auctioneers Act was applicable to the auction of the motor vehicle
- 3.Whether the appellant ought to have considered alternative dispute resolution mechanisms (exhaustion of remedies) before approaching the court by way of Judicial Review proceedings
- 4.Whether the appellant was entitled to the prayers sought
Key legal issues
#Whether the auction complied with the statutory procedure under EACCMA
The auction was lawful. The appellant failed to enter the vehicle within 21 days and pay taxes within the prescribed periods; the Commissioner issued the Gazette Notice under Section 42(1) of EACCMA and could not be faulted for exercising his statutory mandate.
The vehicle arrived on 23rd July 2020; entry ought to have been made by 13th August 2020, but entry was only lodged on 29th December 2020 and taxes paid on 19th May 2021, after the auction on 9th March 2021. The Gazette Notice gave owners a second opportunity to redeem within 30 days. The Bill of Lading named Africa Forwarding Agency Limited as the party to be contacted, matching the Gazette Notice consignee, so the appellant's complaint of non-notification could not hold.
Whether the EACCMA or the Auctioneers Act governed the auction; constitutionality of Section 38 of the Auctioneers Act
EACCMA is self-contained and takes precedence over Partner States' laws under Section 253; Section 38 of the Auctioneers Act ousts customs auctions from the Act and is neither inconsistent with EACCMA nor unconstitutional.
Section 38 of the Auctioneers Act expressly excludes auctions conducted under EACCMA. The 2019 amendment to Section 243 of EACCMA provides that Partner State legislation inconsistent with EACCMA shall not apply to customs sales. The wording of Section 38 and Sections 243 and 253 of EACCMA is unambiguous, and harmonious application of EACCMA required excluding homegrown auction statutes.
Whether the appellant was required to exhaust internal remedies (Tax Appeals Tribunal) before filing judicial review, and whether the judge could raise the issue suo moto
Exhaustion of remedies is jurisdictional. The appellant's recourse against the Commissioner's decision lay under Section 229(1) of EACCMA to the Tax Appeals Tribunal; failure to exhaust divested the High Court of jurisdiction, and the judge was entitled to raise the issue suo moto.
Section 9(2) of the Fair Administrative Action Act bars judicial review of administrative action unless internal mechanisms and remedies under written law are first exhausted, and Section 9(3) requires the court to direct exhaustion. Jurisdiction is a threshold issue that may be raised at any stage, even by the court on its own motion, since without it a court cannot take one step.
Whether the 2nd interested party obtained good title
The 2nd interested party was a bona fide purchaser for value without notice of any illegality; her title was not tainted by fraud.
She participated in the auction without fault, emerged as the highest bidder at Kshs. 5,120,000, paid all requisite statutory charges, and was registered as owner. No illegality or fraud was alleged or proved as against her.
Legal principles established
#- The doctrine of exhaustion of remedies is jurisdictional: where an internal dispute resolution mechanism exists, a court is divested of jurisdiction until it is exhausted, and may raise the issue suo moto
- A court seized of a dispute that belongs before a statutory tribunal has a duty to refer parties back even absent a party's request
- For customs sales by auction in the EACCMA Partner States, EACCMA takes precedence and the Auctioneers Act does not apply; Section 38 of the Auctioneers Act is neither inconsistent with EACCMA nor unconstitutional
- Goods not entered or removed from the port of discharge within 21 days are deemed to be in a customs warehouse, and if not lawfully removed within 30 days after notice, are deemed abandoned to Customs for sale by public auction under Section 42(1) of EACCMA
Court orders
#- 1.Appeal dismissed
- 2.Judgment and decree in Mombasa Judicial Review Application No. E030 of 2021 (JR) delivered by Mativo, J. on 19th August 2022 upheld
- 3.Costs to the 1st, 2nd and 4th respondents and the 1st and 2nd interested parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa Judicial Review Application No. E030 of 2021 (JR)
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1) of the Court's Rules from the High Court's dismissal of a judicial review application; the court exercised a re-appraisal mandate as a first appellate court
Relief refused
#Setting aside of the trial court's judgment and decree and grant of prayers (e), (h), (i) and (j) of the amended Motion (declarations of fraud, unconstitutionality of Section 38 of the Auctioneers Act, and personal responsibility of the Commissioner)
None of the appellant's complaints was merited; the auction complied with Section 42 of EACCMA and the Auctioneers Act was inapplicable to customs auctions
Damages for loss of the motor vehicle (Kshs. 8,000,000) and punitive/aggravated damages (Kshs. 16,000,000 and Kshs. 5,000,000)
The auction was lawful and the allegations of fraud were not proved; the 2nd interested party was a bona fide purchaser for value
Certiorari, prohibition, injunction and mandamus quashing the auction and restoring the motor vehicle
The Gazette Notice particulars sufficiently identified the vehicle; the consignee per the Bill of Lading was Africa Forwarding Agency Limited; personal service of the Gazette Notice was impractical
Costs
Costs to the 1st, 2nd and 4th respondents and the 1st and 2nd interested parties.
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.
In conclusion, having found that none of the appellant’s complaints is merited, it follows that this appeal fails and is hereby dismissed. Consequently, we uphold the Judgment and decree in Mombasa Judicial Review Application No. E030 of 2021 (JR) delivered by Mativo, J. (as he then was) on 19th August 2022. Costs to the 1st, 2nd and 4th respondents and the 1st and 2nd interested parties.
the invocation of the doctrine of exhaustion of remedies is jurisdictional. So that, if there existed other internal dispute resolution mechanisms before a party approaches the court, the court would be divested of jurisdiction to hear the dispute.
It is only in exceptional circumstances that an applicant may overlook the strict procedure under Section 9 (4) of the FAA; and the obligation to demonstrate the exceptional circumstances obtaining squarely falls on the applicant.
Therefore, we find no reason to depart from the findings of the trial Court that Section 38 of the Auctioneers Act is neither inconsistent with EACCMCA and nor is it unconstitutional.
once the goods are not removed from the port of discharge within 21 days, the goods are deemed to be in a customs warehouse and no longer under the importer’s control.
She was, and remains, a bona fide purchaser for value of the motor vehicle which was eventually registered as KDC 880T.
Issues in the judgment
#The judgment misstates the Gazette Notice number/date in the prayer as 'No. 1057 of 5th May 2021' whereas elsewhere it is dated 5th February 2021; also inconsistent spellings of the consignee ('Africa Forwarding Agency Limited' vs 'African Forwarding Agency Limited') and typographical errors such as 'EACCMCA'
Internal date inconsistency in the deponent's affidavit: Ong'icha is described as learning of the auction on '20th December 2021' in one passage while the narrative elsewhere records the discovery on 20th May 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Executive Super Rides Limited v Commissioner of Customs & 3 others; Pandya & another (Interested Parties) (Civil Appeal E065 of 2023) [2026] KECA 555 (KLR)", Case Analysis (2026). Civil Appeal (Mombasa) – appeal against the dismissal of Mombasa Judicial Review Application No. E030 of 2021 (JR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/555/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.