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ELCDismissedNotice of motion application dated April 7, 2022· [2023] KEELC 858 (KLR)
Butt & another v Kenya Revenue Authority & 2 others (Environment & Land Case 67 of 2018) [2023] KEELC 858 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court refused to stop KRA from auctioning Nairobi property because the owners showed no real loss and offered no security.
What this practically means
#Executive summary
#This is a ruling on a notice of motion dated April 7, 2022 brought under sections 1A, 1B and 3A of the Civil Procedure Act. The applicants, including Mohammed Shehazan Butt, sought an injunction restraining the Kenya Revenue Authority from selling or exercising its power of sale over property known as LR No 209/8381/2 pending the hearing and determination of an appeal against a judgment of October 1, 2020, in which the court dismissed their originating summons seeking to have the KRA caveat declared unlawful and themselves declared legal owners of the property. KRA had issued a notification of sale dated January 28, 2022 following a tax audit establishing that Comecons Limited owed tax of Kshs 901,535,418. KRA opposed the application, contending that the taxes had remained outstanding and it was entitled to the fruits of its judgment. The court considered submissions and guidance from the Court of Appeal on the exercise of inherent jurisdiction. It held that the burden lay on the applicants to establish likely injustice or substantial loss and that they had failed to demonstrate either, nor had they offered security, notwithstanding that they had filed an appeal. The application was found to have no merit and was dismissed with costs on February 9, 2023.
Key legal issues
#01
Whether the court's inherent jurisdiction should be exercised to restrain sale of the suit property pending appeal
Holding
Not exercised; the application lacks merit
Reasoning
The applicants filed an appeal against a judgment dismissing their originating summons seeking to declare the KRA caveat unlawful. To invoke inherent jurisdiction they had to demonstrate likely injustice or substantial loss and offer security. They established only that an appeal had been filed, without demonstrating loss or offering security, so the injunction could not issue.
p. 3
Legal principles established
#- The burden is on the applicant to establish that he is likely to suffer an injustice if the orders sought are not granted
Court orders
#- 1.Application dated April 7, 2022 dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (inherent powers of the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Butt & another v Kenya Revenue Authority & 2 others (Environment & Land Case 67 of 2018) [2023] KEELC 858 (KLR)", Case Analysis (2023). Notice of motion application dated April 7, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/858/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.