Republic v Commissioner for Customs & Border Control (KRA); Mwangi (Exparte Applicant) [2023] KEHC 27619 (KLR)

Republic v Commissioner for Customs & Border Control (KRA); Mwangi (Exparte Applicant) (Judicial Review Application 8 of 2021) [2023] KEHC 27619 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27619 (KLR)

Republic of Kenya

In the High Court at Kiambu

Judicial Review Application 8 of 2021

DO Chepkwony, J

November 21, 2023

IN THE MATTER OF THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW IN THE MATTER OF AN APPLICATION BY WILSON MWANGI FOR ORDERS OF CERTIORARI, MANDAMUS & PROHIBITION

Between

Republic

Applicant

and

Commissioner for Customs & Border Control (Kra)

Respondent

and

Wilson Mwangi

Exparte Applicant

Ruling

1. Before this court for determination is Chamber Summons application dated 23rd September, 2021 filed pursuant to Sections 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya and Order 53 Rule 1, 2, 3 and 4 of the Civil Procedure (Amendment) Rules 2020 which seeks the following orders:-a.Spent.b.That this Honourable Court be pleased to grant the Ex parte Applicant leave to apply for an order certiorari to bring into this Honourable Court for purposes of being quashed the unlawful decision of the Commissioner For Customs - Border Control Services Kenya Revenue Authority, the 1st Respondent herein, its agents, employees and/or servants or whomsoever of suspending the Transit Goods Licenses (TGL) for the Ex parte Applicant's trucks namely: Vehicle Registration KBS 275V, Trailer Number ZB5653; Vehicle Registration KBK518M, Trailer Number; and Vehicle Registration KBM899W, Trailer Number ZC 5160 a contained in letters dated 24th August, 2021. c.That an order of Mandamus do issue against the Commissioner For Customs -border Control Services Kenya Revenue Authority, the 1st Respondent herein, its agents, employees and/or servants or whomsoever compelling the Respondent to lift the unlawful suspension of the Transit Goods Licenses (TGL) issued to the Ex parte Applicant's trucks namely: Vehicle Registration KBS 275V, Trailer Number ZB5653; Vehicle Registration KBK518M, Trailer Number; and Vehicle Registration KBM899W, Trailer Number ZC 5160 a contained in letters dated 24th August, 2021 which are in the custody of the 1st Respondent.d.That an order of Mandamus do issue against the Respondents herein, its agents, employees and/or servants or whomsoever compelling the Respondents to release the Ex parte Applicant's trucks namely: Vehicle Registration KBS 275V, Trailer Number ZB5653; Vehicle Registration KBK518M, Trailer Number; and Vehicle Registration KBM899W Trailer Number ZC 5160. e.That this Honourable Court be pleased to grant leave to the Applicant to apply for an order of prohibition to stop or restrain to prohibit the Respondents herein, agents, employees and/or servants or whomsoever from blocking or suspending or in any manner unlawfully limiting the Ex Parte Applicant's access to or use of the Kenya Revenue Authority the 2nd Respondent's online clearance/ taxation system-Simba system arising from the suspension of Transit Goods Licenses of the Ex parte Applicant's trucks namely: Vehicle Registration KBS 275V, Trailer Number ZB5653; Vehicle Registration KBKS18M, Trailer Number; and Vehicle Registration KBM899W, Trailer Number, ZC5160 over the alleged diversion of transit cargo.f.That this Honourable Court be pleased to grant leave to the Applicant to apply for an order of prohibition to the Respondents herein, agents, employees and/or servants or whomsoever from taking any steps, actions and/or measures to enforce or implement their unlawful decisions contained in the letter dated the 24th August, 2021 suspending the Transit Goods Licenses (TGL) for the Ex parte Applicant's trucks namely: Vehicle Registration KBS 275V,Trailer Number ZB5653; Vehicle Registration KBK518M, Trailer Number; and Vehicle Registration KBM899W, Trailer Number, ZC5160. g.That the leave sought do operate as a stay of the Respondent's impugned decisions suspending the Exparte Applicant's Transit of Goods Licenses for trucks namely: Vehicle Registration KBS 275V, Trailer Number ZB5653; Vehicle Registration KBK518M, Trailer Number; and Vehicle Registration KBM899W, Trailer Number, ZC5160 as contained in a letter dated 24th August, 2021 directed at the Ex-parte Applicant.h.That cost of this Application be provided for.

2. The Chamber Summons application dated 23rd September, 2021 is based on the provisions of law, statement of facts and the Supporting Affidavit of Wilson Mwangi, all dated 23rd September, 2021.

3. The Respondent filed Replying Affidavit which was sworn by Kevin Gitau on 17th December, 2021. According to the Respondent, it received information from an anonymous source that a consignment of transit goods destined for South Sudan had been diverted to New Horizon Industrial Park in Ruiru Town. The Respondent holds that it established that a consignment of multimedia speakers had been offloaded in the go down. It further established that there was a report of Khadija Mohamud about theft of three containers of motor vehicle tyres and two containers of subwoofers, all valued at Kshs. 30,000,000/= imported from China which theft had been reported to Ruiru Police Station vide OB No. 86/10/08/2021.

4. It is the Respondent’s case that its investigation team established that the goods did not exit the country and were therefore diverted into the local market which is contrary to Section 104 (22) of East African Community Customs Management Regulations. The Respondent has argued that the transit goods licenses for the trucks were suspended on the basis of non-compliance with the conditions of issuance of transit goods license specifically that transit goods should be conveyed along the gazetted transit route and exit the country within thirty (30) days as provided for under Section 104 of East African Community Customs Management Regulations.

5. The Respondent contends that the Applicant is guilty of the following offences:-a.Diversion of transit goods contrary to Section 104 (22) of East African Community Customs Management Regulations 2010;b.Fraudulent evasion of duty payment contrary to Section 203 (e) of the East African Community Customs Management Act 2004;c.Removing or defacing Custom seal contrary to Section 195 of the East African Community Customs Management Act, 2004;d.Interference with Customs gear contrary to Section 205 of the East African Community Customs Management Act, 2004.

6. The Respondent holds that the sanctions for these offences are prosecution of the Applicant for the tax offences, forfeiture of the goods as provided under Section 210 of East African Community Customs Management Act(EACCMA) and forfeiture of the trucks under Section 211 of East African Community Customs Management Act. The Respondent has a duty to investigate tax-related offences or complaint and al it needs to establish is reasonable suspicion before preferring charges. And from the Respondent’s investigations/findings, there is reasonable suspicion that the Applicant has committed the said tax offenses and should be held accountable for their actions and or omissions through institution of the prosecution process, as he would have an opportunity to defend himself against the said charges at the trial court.

7. It is the Respondent’s case that if the court is to grant the Orders sought by the Applicant, then it will frustrate the constitutional and statutory duties of the Respondent of prosecuting and dealing with tax offenders.

8. Further the Respondent holds that the application for leave to institute judicial review is premature and an abuse of court process. It holds that the court should not grant the orders sought as they are not backed with any proof and further the leave if it so granted should not operate as stay of the Respondent’s decision to suspend the Applicant’s Transit goods license of the trucks. The Respondent urges the court to dismiss the application.

9. The Court directed the Application to be disposed by way of submissions. The Applicant filed his submissions on 18th May, 2022 and the Respondent filed its Submissions on 13th October, 2022 all which the court has considered and taken note of.

Analysis and Determination. 10. From the set of facts, it is clear that section 5(1) of the Kenya Revenue Authority Act, the Authority is an agency of the Government for the collection and receipt of all revenue. Further, under Section 5(2) of the said Act, with respect to the performance of its functions under Subsection (1), the Authority is required to administer and enforce all provisions of the written laws of the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. Further, under Part 1 of the First Schedule to the Kenya Revenue Authority Act, Cap 469 Laws of Kenya, one of the laws the Kenya Revenue Authority enforces is the East African Community Customs Management Act, this is the East Africa Community Customs Management Act together with its Regulations.

11. It is trite law that where the Constitution or statutory laws have provided for rules of procedure the same must be followed and adhered to. This is in accordance to the decision by the Court of Appeal in the case of Speaker of the National Assembly –vs- James Njenga Karume [1992] eKLR, which held that: -“… In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”

12. Under the Tax Procedures Act Section 52 (1) provides that where a person is dissatisfied with an appealable decision he may appeal to the Tribunal in accordance with the Tax Appeals Tribunal Act 2013. Similarly, the East African Community Customs Management Act which is the Act to which these proceedings are premised, provides that the appropriate forum for redress is the Tribunal. Section 230 of East African Community Customs Management Act, which provides as follows:-“A person dissatisfied with the decision of the Commissioner under Section 229 may appeal to a tax appeals tribunal established in accordance with Section 231”.

13. The court agrees with the Respondent that the Applicant ought to have exhausted remedies before approaching the court to seek judicial review orders. The court in the case of Republic –vs- National Environment Management Authority Ex parte Sound Equipment Ltd, [2011] eKLR, where the Court of Appeal observed: -“... Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it....”

14. It is trite law that courts should be slow to interfere with the procedures of statutory bodies which are done in accordance to the law and its procedures. The court should not consider the merits of the decision made but whether the correct procedure was followed in making that decision. The role of judicial review was explained in the case of Republic –vs- Kenya Revenue Authority & Another Ex-Parte Bear Africa (K) Limited where Majanja J. quoting with approval the decision of Githua J. in Republic –vs- Commissioner of Customs Services Ex-parte Africa K-Link International Limited Nairobi HC Misc. JR No. 157 of 2012 [2012] eKLR as follows:-“It must always be remembered that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself. Once it has been established that a statutory body has made its decision within its jurisdiction following all the statutory procedures, unless the said decision is shown to be so unreasonable that it defies logic, the court cannot intervene to quash such a decision or to issue an order prohibiting its implementation since a judicial review court does not function as an appellate court. The court cannot substitute its own decision with that of the Respondent. Besides, the purpose of judicial review is to prevent statutory bodies from injuring the rights of citizens by either abusing their powers in the execution of their statutory duties and function or acting outside of their jurisdiction. Judicial review cannot be used to curtail or stop statutory bodies or public officers from the lawful exercise of power within their statutory mandates.”

15. According to the Respondent, the Applicant was guilty of various offences under the East African Community Customs Management Act, which it correctly followed the law and imposed sanctions such as prosecution for the tax offences, forfeiture of the goods and forfeiture of the trucks. It holds that it seized the trucks in line with Section 211 of the East African Community Customs Management Act for ferrying uncustomed goods and it suspended the licenses for breaching Section 104 of the East African Community Customs Management Act Regulations.

16. It is the court’s finding that the Applicant ought to have first exhausted all the available remedies under East African Community Customs Management Act before approaching this court. The doctrine of exhaustion was also discussed in William Odhiambo Ramogi & 3 Others –vs- Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR where the Court held as follows:-“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”

17. The court finds that the application offends the doctrine of exhaustion and therefore it must fail. The upshot is that the Application dated 23rd September, 2021 is dismissed with costs to the Respondent.It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS21ST DAY OF NOVEMBER, 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Mureithi holding brief for Mr. Njuguna for Exparte ApplicantCourt Assistant - Martin