|Miscellaneous Civil Application 267 of 2010
|REPUBLIC v KENYA REVENUE AUTHORITY EX PARTE UNIQUE DISTRIBUTORS KENYA LIMITED
|25 Mar 2011
|High Court at Nairobi (Milimani Law Courts)
|Daniel Kiio Musinga
|REPUBLIC v KENYA REVENUE AUTHORITY EX PARTE UNIQUE DISTRIBUTORS KENYA LIMITED  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
MISCELLANEOUS CIVIL APPLICATION NO. 267 OF 2010
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
ORDERS OF CERTIORARI, PROHIBITION AND MANDAMAUS
EX PARTE: ............................................UNIQUE DISTRIBUTORS KENYA LIMITED
“1. That this honourable court be and is hereby pleased to issue a Judicial Review for an order of certiorari to issue and to remove to this honourable court and to be quashed the respondent’s decision to impound and detain the applicant’s motor vehicle registration number KBH 617V Mitsubishi Canter vide Notice dated 11th August 2010.
On 2nd August, 2010, while the motor vehicle was loaded with the applicant’s goods for distribution at Machakos Town, it was stopped by the respondent’s officers and towed to Machakos Police Station. On 11th August 2010 the motor vehicle was driven to the respondent’s warehouse at Jomo Kenyatta International Airport, Nairobi, and a Notice of goods deposited in Customs Warehouse issued. The applicant demanded its release but the respondent refused.
The respondent filed a replying affidavit that was sworn by Joelex Mogoka Orora, a Senior Revenue Officer, whose duties include, inter alia, investigation of tax evasion and administration of the Revenue statutes generally in accordance with the Kenya Revenue Authority Act, Cap 469 Laws of Kenya.
He stated that on 2nd August, 2010 he received information that the said motor vehicle was on its way to Machakos conveying spirits without the requisite excise stamps attached to them as per the requirements of the Customs Law. Together with another officer, one James Njoroge Murage, an Assistant Commissioner, they proceeded to Machakos town and managed to intercept the said lorry. When they asked the driver for the documentation of the consignment they were carrying, the driver produced a delivery note but fled from the scene. The respondent’s officers had the motor vehicle towed to Machakos Police Station where it was opened and photographed by police officers from Scenes of Crime division. It was found to be expertly packed with 20 x 750ml “Sherry Ken” cartons. The cartons in which the spirits were found bore the words – “Blended and Parked by UDL P.O. Box 22900-00200 Nairobi, Tel 0720 931 361”.
Simon Mukiri filed a supplementary affidavit and stated, inter alia, that “Sherry King” is an alcoholic beverage whose alcohol content does not qualify to be classified as a spirit as alleged by the respondent and as evidenced by the Kenya Bureau of Standards laboratory tests hence there was no need to affix the excise stamps. In paragraphs 9 and 10 of the further affidavit, Mr. Mukiri deponed as follows:
Let me start by restating that the remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself. See The Supreme Court Practice 1997, Volume 1 14/6. That commentary further states:
“The Minister may, by notice in the Gazette, specify the excisable goods to which the requirement for the affixing of excise stamps under this Section applies.”
The Customs of Excise (Excise Duty Stamps) Regulations, 2008 provides at paragraph 2 thereof that:
In the context of this matter, it is not the function of the court to determine whether the alcohol content in “Sherry King” qualifies it to be classified as a spirit or not. The court cannot, looking at the laboratory test report referred to by the applicant, make a determination to that effect. That is technical work that is best handled by the respondent. But prima facie, it appears more likely than not that “Sherry King” is excisable. That may be gleaned from a close reading of Section 2 of the Customs and Excise Act.
The Act contains various provisions which empower the respondent to impound a vehicle that is suspected to be conveying uncustomed goods. The procedure for forfeiture of such goods is also well stipulated under the Act and no notice is required if anything liable to forfeiture is seized in the presence of the owner.
In view of the foregoing, I do not agree that the respondent’s acts complained of by the applicant was illegal or done in violation of the rules of natural justice. It was also not demonstrated that the respondent acted ultra vires its powers. The applicant also failed to prove that the respondents’ actions were actuated by malice.