Julius Nyerere Opiyo v Republic,Commissioner General, Kenya Revenue Authority & Attorney General [2014] KEHC 5473 (KLR)

IN THE HIGH COURT AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 165 OF 2014

BETWEEN

JULIUS NYERERE OPIYO …………….........................................……….. PETITIONER

AND

THE REPUBLIC …………………………......................................… 1ST RESPONDENT

COMMISSIONER GENERAL,KENYA REVENUE AUTHORITY …..2ND RESPONDENT

THE ATTORNEY GENERAL ………..........................................…… 3RD RESPONDENT

RULING

In the petition dated 7th April 2014, the petitioner seeks, inter alia, the following relief, “An order of certiorari to quash the Kenya Revenue Authority withdrawal of the Petitioners Automated Customs Declaration Password …”

According to the deposition of Aqulino Mwaithali, a Senior Revenue Officer in the Customs Department, the issue at hand is the licence of LAMBVAL LOGISTICS LIMITED which is a clearing and forwarding company licenced by the Kenya Revenue Authority.  The company was informed by a letter written to the National Police Service dated 3rd March 2014 that it had been suspended from the Sumba System pending investigation by the National Police Service.

It is clear that the Company which is the holder of the licence is not a party to this suit and that as a corporate body, the director cannot sue on its behalf.  Furthermore, the Company has recourse against the decision to suspend its licence under the East Africa Community Customs Management Actand the East Africa Community Management Regulations to appeal to the Commissioner against the decision to suspend its licence.

In my view therefore, there is no cause of action against the 2nd respondent and it is accordingly struck out from these proceedings.

As regards the issue of anticipatory bail, I direct the petitioner to serve a notice of Director to Prosecutions with the petition and application and the matter is fixed for directions on 19th May 2014.

DATED and DELIVERED at NAIROBI this 7th day of May 2014.

D.S. MAJANJA

JUDGE

Mr Mukoya instructed by Kasamani and Company Advocates for the petitioner.

Ms Sanga, Advocate, instructed by the Kenya Revenue Authority for the 2nd respondent.

Ms Irari, Litigation Counsel, instructed by the State Law Office for the 3rd respondent.