1.Rana Auto Selection (Rana), took out motion on notice dated 11th May 2021, under rule 17, 18 and 19 (1) of the High Court of Kenya (Organization and Administration) Rules, Order 42 rule 6 and Order 45 rule 1 of the Civil Procedure Rules, section 53 of the Tax Procedure Act and sections 3A and 80 of the Civil Procedure Act and sought a review of the conditional stay of execution pending appeal issued on 11th May 2020.
2.The order required Rana to pay 50% of the decretal sum by the TAT within 14 days from 11th May 2021 and substitute it with an unconditional stay. In the alternative, Rana wants a condition al stay where it will deposit Kenya Shillings Sixty Million (Kshs. 60,000,000) in six equal monthly installments.
3.The motion is premised on the grounds on its face, the supporting and further affidavits sworn by Khan Sultan Ali, a director and shareholder of Rana, on 11th May 2021 and 25th July 2022 respectively.
4.The background leading to this application is that Rana together with Ras Holdings Limited, Sainil Investments Limited and Riasat Ali Mian filed four separate appeals before the Tax Appeals Tribunal (TAT). The appeals were consolidated and in a judgment delivered on 12th April 2021, the TAT dismissed those appeals and upheld the Commissioner’s objection decision confirmation demand for additional customs duty, VAT and corporation tax.
5.Dissatisfied, the four entities filed separate appeals against that judgment. Files simultaneous with the appeals, were applications seeking stay of execution of the judgment by TAT pending the hearing and determination of those appeals.
6.On 11th May 2021, the Court granted stay of execution pending appeal on condition that the appellants pay to the Commissioner 50% of the decretal sum and file and serve the record of appeal within 14 days. It is these orders that Rana wants reviewed or varied.
7.Rana asserts that challenges brought by the Ccvid-19 pandemic and the measures introduced to contain the spread of the virus hampered its business. As a consequence, it is not able to pay 50% of the decretal sum to the Commissioner as ordered by the Court. Rana Further asserts the time within which to comply with the conditions for stay was short to raise the funds.
8.Rana believes that there is proper basis for this Court to vary the conditional stay. Rana maintains that if the orders are not varied, it will suffer irreparable injury as enforcement will lead to automatic collapse of the business which will also affect employees and other businesses that depend on it as a going concern.
9.In Rana’s view, the Commissioner will not suffer any prejudice given that it will remain a going concern and continue paying taxes. This is more so since the Commissioner has place prohibition orders pursuant to section 45 of the Tax Procedure Act which is good enough protection.
10.Rana further argues that it has already paid Kshs. 76,000,000 to KRA and an additional Kshs. 108,213,774 following a review of corporation tax due from Kshs. 852,750,429 to Kshs. 108,213,774, following negotiations between the parties. Rana contends, therefore, that the amount already paid is sufficient security for granting unconditional stay of execution.
11.The Commissioner has opposed the application through grounds of opposition dated 9th June 2021, arguing that Rana has not met the conditions for review under Order 45 rule 1 of the Civil Procedure Rules. According to Rana, the application is bad in law, frivolous and an abuse of the court process in that it regurgitates the grounds that were advanced in the application for stay dated 13th April 2021.
12.The Commissioner’s concerned is that in the event the intended appeal is unsuccessful, Rana may not be able to raise the taxes in dispute since it claims that it is unable to raise 50% of the decretal sum.
13.The application seeks review and variation of the conditional stay granted on 11th May 2020. The court ordered Rana and the other appellants to pay 50% of the disputed that to the Commissioner within 14 days of that order and file and serve the record of appeal within that timeline.
14.Those orders were not complied with and Rana has now applied for review of those orders and be either grant an unconditional stay or be allowed stay on condition that it deposits Kshs. 60,000,000 in six equal instalments. In essence, Rana wants stay subject to payment of Kshs. 10,000,000 per months for next six months following review.
15.Rana has, in principle, invoked the jurisdiction of this court under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. Section 80 provides that a person aggrieved by a decree or order where an appeal is allowed but no appeal has been preferred, or by a decree or order where no appeal is allowed, may apply for a review of that judgment or order and the court which passed the decree or made the order, may make such order as it thinks fit.
16.Order 45 grants the court discretion to allow an application for review where it is shown that there is a mistake or error apparent on the face of the record; discovery of new and important matter, or for any other sufficient reason. Although this jurisdiction is discretionary, it must, however, be exercised judicially.
17.The law on review is settled that a review may only be granted where the court considers it is necessary to correct an apparent error or omission on the part of the court or for other sufficient reason. The error or omission must be self-evident and should not require an elaborate argument to be established. It is not a sufficient reason for review if the applicant thinks that another Judge would have taken a different view of the matter. (National Bank of Kenya Ltd v Ndungu Njau  eKLR).
18.In Pankras T. Swai v Kenya Breweries Ltd  eKLR, the Court of Appeal pointed out that a party cannot seek review on grounds of law as those are grounds of appeal and not review. The court went on to state:
19.The court also pointed out that the words, “any sufficient reason” must be understood in the context of section 80 of the Civil Procedure Act which confers an unfettered right to apply for review, and the current jurisprudential thinking that the words need not be analogous with the other grounds specified in Order 45.
20.In Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd  eKLR, the Court of Appeal again stated:
21.What is clear from the above decisions, is that an applicant must bring the application for review within the grounds in Order 45 rule 1, or for any other sufficient reason.
22.Rana’s case, as I perceive it, is not that there is an error apparent on the face of the record but rather, that the conditional stay was difficult to comply with. Rana wants this court to give softer conditions or has suggested conditions of its own liking. That is why Rana wants either unconditional stay or to pay Kshs. 60,000,000 within six months.
23.I have considered the application and reasons on which it is grounded. The fact that the court gave what appeared to Rana to be unfavorable conditional stay is not, in my considered view, an error requiring review under section 80 of the Act as read with Order 45 of the Rules. For purposes of review, the error or mistake must be real and not an illusory, and must have led to an injustice to call for review.
24.The grounds that Rana has put forward in seeking review such as inability to meet the conditions for stay are not, in my respectful view, grounds for review but for appeal. In National Bank of Kenya Ltd v Ndungu Njau) (supra) the Court stated that that it is not a ground for review if the argument is that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law, or misconstrued a statute or other provision of law. (See also Nyamogo & Nyamogo v Kogo  EA 170.
25.I have perused the ruling dated 11th May 2021 where the court elaborately considered the test for granting stay pending appeal. The court then stated at paragraph 46 of the ruling:
26.Following that observation, the court imposed a conditional stay Rana now wants reviewed and set aside.
27.The court having exercised its discretion and considered interest of justice before imposing the conditional stay, it is not in the province of this court to vary those conditions and give conditions favorable and as suggested by Rana.
28.Having given due consideration to the application, response and submissions, the conclusion I come to, is that Rana has not persuaded this court that there is good reason to exercise its jurisdiction for review. Consequently, the application dated 26th May 2021, is declined and dismissed with costs.
29.This ruing and the orders herein shall apply to HCCOMM Misc. App. No. E269 of 2021, HCCOMM MISC App. No. E270 of 2021, and HCCOMM Misc. App No. E271 of 2021. For avoidance of doubt, applications for review in those files (if any) are dismissed.