Nizaba International Trading Company Limited v Kenya Revenue Authority

High Court, at Kisumu December 2, 2000

Birech, Commissioner of Assize

Miscellaneous Civil Case 149 of 2000

Civil Practice and Procedure - res judicata – constituent features of resjudicata – whether judicial review applications can amount to a “suit” within the meaning of section 2 of the Civil Procedure Act – whether judicial review applications can be res-judicata.

Tax – Income Tax - assessment of income tax to be served upon the person assessed together with his rights under section 84 of the Act - Commissioner of Income Tax to act on any objection raised on assessment

The applicant company filed a Notice of Motion under the provisions of order 53 rule 3 of the Civil Procedure Rules seeking orders of judicial review against the actions, the inactions and the intended actions of the Kenya Revenue Authority through the Commissioner of Income Tax. The application was also based on the provisions of sections 52, 76, 85(3) and 92 of the Income Tax Act. The grounds upon which the orders were sought were, the additional assessment levied on the Company by the Commissioner of Income Tax was arbitrary and lacking in any factual basis, the said additional assessment was based on wrong principles and was bad for disclosing fatal errors on its face, the respondent had abused his discretion in making the said additional assessment, and, the applicant stood to loose substantially if the orders prayed for were not granted. On the other hand, the Commissioner of Income Tax argued that the application was res judicata as the issues involved in the application had been the same ones canvassed in Kisumu HC Misc Application Number 64 of 2000 between the same parties.

Held:

1. The main features that must subsist when a plea of res-judicata is raised are that; there must have been a former suit involving the same parties or between parties under whom they claim or any of them claim. The issues in dispute in the current suit must be directly and substantially in issue in the former suit and the suit must have been heard and finally decided by a Court of competent to try the suit.

2. The presentation of an application by way of order 53 of the Civil Procedure Rules cannot be termed as a suit within the meaning of section 2 of the Civil Procedure Act.

3. Proceedings under judicial review do not determine the issues between the parties finally. It makes provisions to quash a decision on the ground that the decision is ultra vires or that the person applying for the orders has been prejudiced by the non-compliance of the statutory provisions.

4. Section 78 of the Income Tax Act requires that the Notice of Assessment of Income must be served upon the person assessed and further that person must be explained his rights under section 84 of the Act, namely, the rights of the tax payer to lodge an objection.

5. Once an objection has been raised, it is incumbent upon the Commissioner of Income Tax to act in any of the ways provided for by section 85 of the Act. It is not enough for the Commissioner to remain inactive and state that there is no provision in the Act to amend an assessment, which has been made pursuant to an earlier assessment.

6. The Commissioner of Income Tax is a creature of the statute and can only do what the Act allows him to do. If he gets outside the powers granted to him by the Act or fails to perform his duties, he is amenable to be supervised by the High Court.

7. An order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty so imposed fails or refuses to perform the same.

8. Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction or where the Rules of Natural Justice are not complied with or for such like reasons.

9. An order of prohibition is an order directed by the High Court to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land.

Application allowed.

Cases

Kenya National Examination Council v Republic Ex parte Geoffrey Gathenji Njoroge & 9 others Nairobi Civil Appeal No 266 of 1996

Texts

Mitter, R C (Ed) (1953) Mulla on the Code of Civil Procedure Bombay: N M Tripathi Private Ltd 12th Edn p 80

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order IV rule 1, order LIII rule 3

2. Civil Procedure Act (cap 21) sections 2, 7

3. Income Tax Act (cap 470) sections 52, 76, 77, 78, 85, 85(2) (3); 92; 122

Tort-negligence-road traffic accident-deceased was driving a tractor that was involved in the accident in which he died on the spot-deceased aged 27 years at the time of his death, was the youngest son in the family who used to maintain their mother from his salary of Kshs.4,000-apportionment of liability-quantum of damages

Sireret Farmers Co Ltd v Ododa

High Court, at Kisumu February 15, 2000

Birech, Commissioner of Assize

Civil Case No 90 of 1999

Civil Practice and Procedure – grounds of opposition and replying affidavit – pleadings filed out of time – whether the Court should not consider such pleadings.

Affidavit – contentious factual matters – whether the advocate for a party can swear an affidavit containing such matters.

The applicant brought an application by way of Chamber Summons under order 6 rule 13 (1) (b) of the Civil Procedure Rules and section 3A of the Civil Procedure Act in which it sought orders to strike out the defence filed in the main suit by the respondent. The applicant further sought orders that judgment be entered in terms of the plaint.

The application was based on the grounds that the defence was frivolous and vexatious and constituted an abuse of the process of court. The application was opposed by grounds of opposition and a replying affidavit sworn by the advocate for the respondent. These were filed a day after the time allowed by the provisions of order 50 rule 16 (2).

Held:

1. Order 50 rule 16 (2) does not say that documents filed out of time must be ignored. The Court is bound to consider them unless for a reason other than a mere lateness it considers it undesirable to do so.

2. An advocate acting for a party should not make a sworn affidavit on disputed matters.

3. The Court should only strike out a pleading in clear cases.

Application allowed.

Cases

1. Central Bank of Kenya v Uhuru Highway Development Company Ltd & 3 others Civil Appeal No 75 of 1998

2. Kuya Investments Ltd & another v Kenya Finance Corporation & others Civil Case No 3504 of 1993

3. Ngui, Simon Isaac v Overseas Courier Services (K) Limited Civil Case No 1632 of 1997

4. Sheghu, Scholastica M v Kenya Power & Lighting Co Ltd, Civil Case No 215 of 1992 [KSM]

5. Caneland Limited v Commissioner of Lands & 5 others Civil Case No 219 of 1996 (KSM).

6. DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1

7. Trivedi & another v Njeri Ngiru & another Civil Appeal No 129 of 1984

Texts

Jacob, IH et al (Eds) (1996) The Supreme Court Practice London: Sweet & Maxwell p 329 para 18

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13(1)(b), order XXI rule 79, 86, order XXIII rules 3, 4, 8, 11

2. Civil Procedure Act (cap 21) section 3A

3. Registered Land Act (cap 300) sections 27, 28, 104, 122, 145

4. Law of Succession Act (cap 160) sections 3, 45

Advocates

Mr Otieno for the Applicant

Miss Malik for the Respondent