' Pursuant to leave of court issued by this court on 29 th April 2025, the Applicant filed on 21 st May 2025 its substantive notice of motion dated 21 st May 2025. The notice of motion is predicated on Order 53 Rule 3 (1) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act.
The motion seeks the following orders; That an order of CERTIORARI to remove into this Court for quashing the decision made by the Respondent dated 24 th February 2025 declining the extension of time to apply for review against offences compounded on 24 th July 2024.
That an order of MANDAMUS to compel the Respondent to consider the Ex parte Applicant’s review of the offences compounded on 24 th July 2024.
That an order of PROHIBITION to forbid the Respondent from collecting any taxes from the impugned offences compounded on 24 th July 2024.
That the costs of this application be provided for.
The Notice of Motion is supported by a verifying affidavit of Peter Gordon Scott who introduces himself as the Director of the Ex parte Applicant sworn on 14 th March 2025 and filed on 20 th March 2025 and also supported by a statutory statement dated 14 th March 2025, also filed on the even date.
The Ex parte Applicant’s case is that it is a vertically-integrated entity which owns and operates a manufacturing facility for clean, affordable, energy-efficient, and eco-friendly cooking stoves that target the ordinary Mwananchi, including but not limited to both low- and middle-income households.
That the Applicant imported a consignment of stainless-steel rods size 4.5MMX2400M vide Import Entry numbers 24EMKIM400191410, 24EMKIM400229882 and 24EMKIM400217926 in March 2024.
The Respondent is said to have subjected the consignment to a tariff assessment upon which a ruling was issued by the Tariff Section on behalf of the Commissioner on 4 th April 2024.
That unknown to the Applicant and without proper instructions, the Applicant’s clearing agent and the Respondent entered into an offence settlement on 24 th July 2024, admitting that the Applicant had committed a customs offence.
The Applicant’s case is that the said offences were compounded and the Applicant only came to learn of the said settlement when the Respondent demanded the said tariffs as assessed, on 21 st August 2024.
That the ex-parte Applicant commenced its own investigations concerning how the clearing agent had proceeded to settle the offences without its involvement. The said investigations are said to have involved engaging the clearing agent and reporting the matter to the police.
The Applicant claims that its company officers recorded statements with the police and the Applicant had crucial evidence that the settlement by the Respondent and their Clearing agent had been fraudulently done.
The Applicant takes issue with the said settlement for compounding offences and has sought to review the said settlement entered into by the Respondent and the clearing agent who allegedly had no instructions to enter into such arrangement.
That being outside the statutory timelines to file a review with the Respondent, the Applicant on the 20 th February 2025 made an application for late review with the Respondent to review the said decision. However, that the Respondent on 24 th February 2025 through a letter, informed the Applicant that it had declined its review of the compounded offences yet what the Applicant had made before the Respondent was an application to make a late review application.
According to the Applicant, the Respondent has the requisite powers to determine a review under Section 219(3)(e) of the East African Community Customs Management Act, 2004 and that therefore the same ought not to be confused with an appeal.
It is also asserted that the Respondent’s assertions that Section 229 of the East African Community Customs Management Act 2004, does not apply to the Ex Parte Applicant is misconceived and that decisions arising from compounding of offences can only be final and not subject to an appeal if the same are not unchallenged.
The Applicant also filed a supplementary affidavit sworn by Peter Gordon Scotts on 19 th June 2025. From the said affidavit, the Applicant’s further case is that once a party to the settlement under Section 219 of the EACCMA challenges the process of how the compounding of offences was done, then the same cannot be said to be final and not subject to an appeal.
The Applicant asserts that Section 219(2) of the EACCMA provides that the Respondent shall not exercise the powers to compound unless the person admits in a prescribed form that they have committed an offence, and that where a party challenges that they have not admitted the offences settled/compounded by the Respondent, then such compounded offences and orders cannot be said to be final and not subject to appeal.
The Applicant reiterates that in fact, what it sought from the Respondent through the letter dated 20 th February 2025 was a request for extension of time to lodge a review against the offences compounded but the Respondent in its decision dated 24 th February 2025 indicated that it was not within the jurisdiction and powers of the Commissioner of Customs to entertain any appeal outside the time allowed.
That this assumption by the Respondent that it has no such powers was an abdication of the Respondent’s role under Section 229(3) of the EACCMA which provides that a person directly affected by the decision or omission of the Commissioner may lodge a review albeit after the time specified.
The Applicant claims that the Respondent has only provided a port pass of Wilson Kahiro who appears nowhere near the signed documents in relation to the compounding offences. Further, that no evidence has been provided of Japheth Kilio the person alleged to have signed the offence mitigation forms. This according to the Applicant, is despite the fact that compounding of offences is criminal in nature and therefore the Respondent ought to have exercised some caution which they did not.
The Applicant also states that the Respondent did not consider the reasons for which it sought for extension of time to file a review out of time. It is also the Applicant’s case that as much as it is bound by the actions of their agents pursuant to section 148 of the Act, the same does not extend to the agent binding it to criminal liability which is personal.
That the Respondent did not comply with the requirements of section 219 (2) of EACCMA as it failed to conduct due diligence upon the persons entering into settlement the compounding of the offences by accepting settlements signed by Japheth Kilio and relying on port pass by Wilson Kahiro.
The Applicant further states that the Respondent has proceeded to collect taxes and that it is not a bar and should the court quash the said decision dated 24 th February 2025, then any amounts collected from the said decision ought to be refunded to the applicant.
The Applicant also filed written submissions dated 19 th June 2025. It is submitted that the process leading to the compounded offences by the Respondent was flawed, and as such any action arising from the said process did not meet the requirements of Section 219 of the EACCMA thus the same was null and void. The Applicant also relies on Section 219 of the EACCMA on settlement of cases by the Commissioner.
The Applicant submits that the compounding of offences was not properly done by the Respondents, and that in fact, the Respondent has not provided any evidence of Japheth Kilio the person alleged to have signed the offence mitigation forms.
It is the Applicant’s further submission that the Respondent does not exercise the powers to compound unless the person admits in a prescribed form that they have committed an offence. That once the Applicant challenges the propriety of the offences settled /compounded by the Respondent, then such compounded offences and orders cannot be said to be final and not subject to appeal.
The Applicant submits that the process leading to the compounding of offences by the Respondent having been flawed, any action arising from the said process did not meet the requirements of Section 219 of the EACCMA thus the same was null and void.
Reliance is placed on the case of MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172] where the court is said to have held that if an act is void, it is automatically a nullity in law, incapable of being validated and any proceedings based on it are equally void and bound to collapse.
The Applicant submits that a criminal offence is so personal and that as such, the same cannot be left to an agent and an agent just like a lawyer cannot bind its clients in a criminal case.
The Applicant submits that the Respondent unreasonably denied it an opportunity to review the compounded offences when it made a decision that it is not within the jurisdiction and powers of the Commissioner of customs to entertain any appeal outside the time allowed.
The Applicant submits that the decision by the Respondent was grossly unreasonable/ outrageous and in defiance of logic or acceptable moral standards as was held in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation (1948) 1 K.B 223 .The Applicant further places reliance on the case of OJSC Machines Ltd, Transcentury Limited and Civicon Limited (Consortium) vs Public Procurement Administrative Review Board of Kenya & 2 others (201) eKLR , where the Court is said to have observed that the object of judicial review is to safeguard citizens from harm by ensuring that statutory bodies neither abuse the powers entrusted to them nor act beyond the limits of their lawful mandate.
The Applicant submits that it is entitled to the judicial review writs of certiorari, mandamus and prohibition and to this end, the Applicant relies on the case of Republic vs. Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996 .
The Applicant submits that the decision arrived at on 24 th February 2025 is an abdication of the Respondent’s statutory power, and the Respondent considered matters it ought not to have considered. Further, that it failed to consider an issue it ought to have considered, and as such the same is fit for quashing vide certiorari.
With regard to mandamus, the Applicant submits that it is entitled to the said order as the Respondent is required under Section 229(3) of the EACCMA to make the said decision.
Additionally, that even though the Respondent has proceeded to enforce the same, once the Court finds that the decision was irregular and quash it, then any subsequent act by the Respondent will be a nullity and the Court can issue appropriate reliefs.
The Respondent’s Response
In response to the Notice of Motion, the Respondent filed a replying affidavit on 5 th June 2025. The affidavit is sworn on 4 th June 2025 by Tabitha Shikanda who introduces herself as an officer of Kenya Revenue Authority.
The Respondent’s case is that the Kenya Revenue Authority is established under Section 5(1) of the Kenya Revenue Authority (KRA) Act as an agency of the Government for the collection and receipt of all revenue.
That under Section 5(2) of KRA Act, the Respondent is required to administer and enforce all provisions of the written laws set out in Part I & II of the First Schedule to the KRA Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. That under Part I of the First Schedule to the KRA Act, the Respondent enforces the East African Community Customs Management Act, 2004.
According to the Respondent, in March 2024, the Applicant through their clearing agents Continental Logistics Networks Limited imported a consignment of stainless-steel rods size 4.5 MMX2400M vide Entry No. 24EMKIM400191410, 24EMKIM4000229882 and 24EMKIM400217926.
The Respondent states that upon importation, there arose a dispute concerning misclassification of goods imported by the Applicant under import Entry No. 24EMKIM400191410, 24EMKIM4000229882 and 24EMKIM400217926.
It is stated that the said consignments were subjected to a tariff assessment, and it was noted that identical goods from the same exporter which were being imported by different consignees were being classified differently. That the Respondent after subjecting the said consignments to analysis issued a tariff ruling on 4 th April 2024.
The Respondent states that the Applicant appealed against this ruling but the appeal was denied and the previous ruling upheld on 17 th May 2024.
That the Applicant re-appealed the said ruling vide a letter received on 12 th July 2024 which the Respondent responded to on 10 th August 2024 informing the Applicant that the indulgence was the final communication from the Respondent on the matter and that the Respondent considered the dispute resolved as per Section 229 of the EACCMA.
The Respondent’s contention is that the Applicant through its Clearing Agent (Continental Logistics Network Limited) accepted the entry amendments as amended by applicants as a gesture that they indeed were in agreement with the proposed change in Tariff on the entry as communicated by the respondent through the Tariff rulings.
The Respondent states that on 24 th July 2024 the Applicants clearing agent signed the request for settlement forms admitting that the importer had indeed committed an offence.
That the said mitigation of offences forms and request for settlement forms were properly presented by the Clearing agent representatives and was properly identified with their port pass identity card as a representative of the Clearing Agent.
The Respondent states that the offences were raised and compounded through case reference numbers F71/0004741/2024, F71/0004756/2024 and F71/0004740 /2024 respectively. That as a result, the Applicant generated the following Eslips for offences on 25 th July 2024 as follows; 1020240000873001 for Kshs 1,385,442, 1020240000872982 for Kshs 1,375,747, 1020240000872984 for Kshs 401,373.
According to the Respondent, it has on several occasions requested the payment of unpaid duty from the applicant but that the applicant has refused/neglected to pay the said duty and as a result, the respondent detained the Applicant’s consignment registered under Import Entry No. 24EMKIM400770589 to compel the applicant to pay the outstanding taxes pursuant to Section 130 of the East African Customs Management Act.
The Applicant is said to have gone to court on 25 th October 2024 in Kiambu High Court Constitutional and Human Rights Petition No. E042 of 2024 to compel the Respondent to release the consignment detained under Import Entry number 24EMKIM400770589. However, that the Applicant withdrew Kiambu High Court Constitutional and Human Rights Petition No. E042 of 2024 on 7 th April 2025.
The Respondent states that it released the consignment upon provision of security by way of a bank guarantee amounting to the taxes of Kshs 10,993,853 which were in dispute. The bank guarantee’s validity was 6 months expiring on 7 th May 2025.
That on 20 th February 2025, the Applicant wrote to the Respondent requesting for extension of time to lodge a review against the offences compounded on 24 th July 2024. The Respondent states that it considered the Applicant’s application/request and rejected the said application on 24 th February 2025 in view of Section 147 of the EACCMA 2004, which provides that a duly authorised agent performing any acts on behalf of the owner of the goods shall be deemed to be the owner of the goods.
The Respondent’s decision, it is contended, was based on Section 219 of the EACCMA which is said to provide that the Respondents’ orders on compounding of offences are final and not subject to appeal.
That the Applicant’s bank guarantee’s validity being for 6 months and expiring on 7 th May 2025, the Respondent proceeded to liquidate the same on the 22 nd April 2025 after informing the bank to liquidate the same.
The Respondent’s case is that if the Applicant seeks to challenge the compounded offences, then the Applicant ought to make an application to set aside the said order, a remedy which is not provided for under the EACCMA and which cannot be challenged under Section 229 of the EACCMA.
The Respondent maintains that it was under no obligation to extend time for the Applicant’s late review request since such discretion under Section 229(3) of the EACCMA is conditional and was not satisfied in this case. It argues that mandamus cannot compel it to act outside its legal powers and that under Sections 2(1) and 148 of the EACCMA, the Applicant is bound by the acts of its duly authorised clearing agent who properly executed the compounding forms after admitting the offences through the signing of settlements.
It is contended That any claim of fraud, lies against the applicant’s agent in tort and not against the Respondent. Further, that having lawfully exercised its powers in compounding the offences and already liquidated the Applicant’s bank guarantee to recover outstanding taxes, the Respondent asserts that prohibition is unavailable as the matter has been overtaken by events. Accordingly, it urges this Court to dismiss the application herein with costs while it continues to discharge its statutory mandate.
The Respondent also filed written submissions dated 23 rd June 2025 on 24 th June 2025. The Respondent argues that the Applicant was bound by the actions of its agent (Continental Logistics) when the agent compounded the offences pursuant to Section 219 of the EACCMA . The Respondent also places reliance on Section 148 of the EACCMA on liability of owner for acts of duly authorized agent.
Reliance is also placed in the cases of Republic v Kenya Revenue Authority Ex-parte African Boot Company Limited [2012] KEHC 4298 (KLR ) and Republic vs. Kenya Revenue Authority Ex parte Alltex EPZ Limited Nairobi High Court Judicial Review Application No . 709 of 2008 where the court is said to have held that the importer remains responsible for the conduct of its agent in all circumstances.
The Respondent submits that that the Applicant has a remedy against their agents in tort and as such, should not be allowed to escape liability as a result of their agent’s actions.
It is further submitted that the Respondent has no power under Section 229 of the EACCMA to review compounded offences under Section 219 of the EACCMA. The same is said to have been as a result of the instructive reading of Section 219(3)(e) of the EACCMA.
The Respondent also submits that it properly disallowed the Applicant’s application and that the Applicant ought to have moved this Court in the first instance to challenge the said compounding, and that it was not the one to determine the application.
The respondent relied on the case of Commissioner General (TRA) Vs Mohamed Ali Salim & Anor Civil Appeal No.80 of 2018 where the Court is said to have held that a decision of a quasi-judicial body which is final and not appealable can be challenged by seeking judicial review before the High Court.
The Respondent submits that the Applicant is not entitled to the order of certiorari as the decision by the Respondent to decline extension of time was guided by Section 219 of the EACCMA. The Applicant, it is contended, has not proven that the decision was replete with any ground for the grant of judicial review orders as elucidated in the case of Republic V Kenya Revenue Authority Exparte Yaya Towers Limited [2008] eKLR.
The Respondent submits that the Applicant is not entitled to the order of mandamus as the Respondent has no powers to consider an application for extension of time on compounded offences where the Respondent has no such powers. To this end, the Respondent places reliance on the case of Jotham Mulati Welamondi v Chairman, Electoral Commission of Kenya [2002] KEHC 1123 (KLR ).
On prohibition , the Respondent submits that the writ cannot issue as the same has already been overtaken by events, and thus this Court cannot issue an order in vain hence the application should be dismissed.
Analysis and Determination
From the notice of motion, affidavits in support and opposition thereto and submissions of the respective parties all summarized herein above, the following issues arise for determination:
Whether a review under Section 229 of the East African Community Customs Management Act, 2004 (EACCMA) is available in respect of offences compounded under Section 219 of the same Act and therefore whether the Commissioner had power to extend the statutory period for lodging such a review, which was filed 20/2/2025 seeking to extend time to review the decision made on 24 th July 2024.
Are there any jurisdictional issues in this matter and if so, what is their effect?
Whether, in light of the Applicant’s conduct and the circumstances of the case, the Respondent acted unlawfully, irrationally, or in breach of procedure in declining to entertain the late review application.
What orders should the court make including the question of costs if any?
I shall address and determine the foregoing issues collectively and cumulatively. On the first issue, it is not in dispute that the respondent herein, The Commissioner of Customs Control (the Commissioner) as defined under section 2 of the EACCMA and appointed under section 5 of the same Act bears the statutory mandate of the management and control of the Customs including the collection of, and accounting for, Customs revenue in the respective Partner State.
Section 5(1) of the Kenya Revenue Authority Act (KRA) Act on the other hand establishes the Authority as the agency charged with this responsibility, while Section 5(2) obligates the Authority to administer and enforce the provisions of the written laws set out in the First Schedule, including the East African Community Customs Management Act, 2004 (EACCMA).
In the discharge of the statutory mandate, the Respondent is empowered to take enforcement action against non-compliance and the Act expressly criminalizes the failure to pay customs duties/tarriffs lawfully due. Section 203 of the EACCMA makes it an offence for any person to evade payment of duty or to in any way be knowingly concerned in the fraudulent evasion of such duty.
Against that background, the commencement point for analysis is Section 219 of the EACCMA, which empowers the Commissioner respondent herein to compound customs offences where a written admission is made, by imposing a monetary penalty.
Section 219 of the EACCMA provides as follows:
“Settlement of Cases by the Commissioner
219. (1) The Commissioner may where he or she is satisfied that any person had committed an offence under this Act in respect of which a fine is provided or in respect of which any thing is liable to forfeiture, compound the offence and may order such person to pay a sum of money, not exceeding the amount of the fine to which the person would have been liable if he or she had been prosecuted and convicted for the offence, as the Commissioner may deem fit; and the Commissioner may order any thing liable to forfeiture in connection with the offence to be condemned.
(2) The Commissioner shall not exercise his or her powers under subsection (1) unless the person admits in a prescribed form that he or she has committed the offence and requests the Commissioner to deal with such offence under this section.
(3) Where the Commissioner makes any order under this section—
(a) the order shall be put into writing and shall have attached to it the request of the person to the Commissioner to deal with the matter;
(b) the order shall specify the offence which the person committed and the penalty imposed by the Commissioner;
(c) a copy of the order shall be given to the person if he or she so requests; (d) the person shall not be liable to any further prosecution in respect of the offence; and if any prosecution is brought it shall be a good defence for the person to prove that the offence with which he or she is charged has been compounded under this section; and
(e) the order shall be final and shall not be subject to appeal and may be enforced in the same manner as a decree or order of the High Court.
On the other hand, Section 229 (1), (2) and (3) of the EACCMA provides as follows:
(1)A person directly affected by the decision or omission of the Commissioner or any other officer on matters relating to Customs shall within thirty days of the date of the decision or omission lodge an application for review of that decision or omission.
(2) The application referred to under subsection (1) shall be lodged with the Commissioner in writing stating the grounds upon which it is lodged.
(3) The Commissioner shall, within a period not exceeding thirty days of the receipt of the application under subsection (2) and any other information the Commissioner may require from the person lodging the application, communicate his or her decision in writing to the person lodging the application stating reasons for the decision".
Section 230 (1) and (2) of EACCMA provide for appeal mechanisms where a person is aggrieved by the decision of the Commissioner made under section 229 above and it provides as hereunder:
(1) "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.
(2) A person intending to lodge an Appeal under this section shall lodge the Appeal within Forty-five days after being served with the decision, and shall serve a copy of the Appeal on the Commissioner.
A reading of the above provisions of the EACCMA reveals that the said sections must be read together and not one in isolation of the other. The import of Section 229(1), (2) and (3) of EACCMA above is that the Applicant who was dissatisfied with the decision made by the Commissioner in the matter relating to customs (compounding of offences being one of them under the Act, was required, in the first instance to lodge an application in writing for review of the Respondent''s decision, stating the grounds upon which the review is lodged. On receipt of the application for review of the decision, the Respondent is required to respond within thirty days of receipt of the application. In the event that the Respondent''s decision is not in favour of the Applicant, then the latter has a right of Appeal to the Tribunal, as stipulated in section 230 of the EACCAMA. Where such review is not filed within 30 days stipulated, then the Commissioner may be moved to accept an application for review outside the 30 days.
it is further worth noting that Section 12 of the Tax Appeals Tribunal Act (TATA), provides for Appeals to the Tribunal over the Respondent''s decisions on any tax dispute. The section provides as follows:
A person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner. [emphasis added]
Section 2 of the TATA defines an Appeal as "an Appeal to the Tribunal against a decision of the Commissioner under any of the tax laws." This section read together with Section 12 of the same Act stated herein above in the judgement, clearly shows that the decision for the Respondent which is Appealed to the Tribunal is a decision made pursuant to Section 229 of EACCMA.
The tax laws are expounded in Section 2 of the TATA wherein ЕАССМA is included.
It is also important to note that Commissioner in the context of these proceedings is the head of Customs and Border Control and is one of the Commissioners appointed under section 13 of the Kenya Revenue Authority Act which provides:
13. Appointment of Commissioners and other officers
(1) The Board shall appoint to the service of the Authority; such Commissioners as may be deemed necessary.
On the other hand, the Tax Appeals Tribunal Act defines Commissioner as:
"Commissioner” means the Commissioner appointed under Kenya Revenue Authority Act;
Section 5 of the EACCMA mandates the appointment by each Partner State a Commissioner responsible for the management of Customs and other staff as may be necessary for the administration of the Act and the efficient working of the Customs.
According to the Respondent, after subjecting the applicant’s consignments to analysis, issued a tariff ruling on 4th April 2024, the Applicant appealed against this ruling but the appeal was dismissed and the previous ruling upheld by Tariff on 17th May 2024. Further that the Applicant re-appealed the said ruling vide a letter received on 12th July 2024 which the Respondent responded to on 10th August 2024 informing the Applicant that the indulgence was the final communication from the Respondent on the matter and that the Respondent considered the dispute resolved as per Section 229 of the EACCMA.
In other words, according to the Respondent, the applicant after receiving the decision on tariffs, challenged the decision by way of an appeal but the appeal was dismissed and it reappealed without success.
However, although Part XX is headed appeals, section 229 which falls under Part XX of the Act is specifically dedicated to review of the decision or omission by the Commissioner within 30 days and extension of time for review where such time has lapsed. It follows that the applicant was right in its submission that the Commissioner had jurisdiction to review the decision relating to compounding of offences in as much as such decision would be final and not appealable under section 219 of the Act.
The Applicant in a letter dated 20 th February 2025 sought to invoke Section 229(3) of the EACCMA after lapse of the thirty-days period, urging the Commissioner to admit a late review. The Applicant in its letter stated that th
[...truncated]
The motion seeks the following orders; That an order of CERTIORARI to remove into this Court for quashing the decision made by the Respondent dated 24 th February 2025 declining the extension of time to apply for review against offences compounded on 24 th July 2024.
That an order of MANDAMUS to compel the Respondent to consider the Ex parte Applicant’s review of the offences compounded on 24 th July 2024.
That an order of PROHIBITION to forbid the Respondent from collecting any taxes from the impugned offences compounded on 24 th July 2024.
That the costs of this application be provided for.
The Notice of Motion is supported by a verifying affidavit of Peter Gordon Scott who introduces himself as the Director of the Ex parte Applicant sworn on 14 th March 2025 and filed on 20 th March 2025 and also supported by a statutory statement dated 14 th March 2025, also filed on the even date.
The Ex parte Applicant’s case is that it is a vertically-integrated entity which owns and operates a manufacturing facility for clean, affordable, energy-efficient, and eco-friendly cooking stoves that target the ordinary Mwananchi, including but not limited to both low- and middle-income households.
That the Applicant imported a consignment of stainless-steel rods size 4.5MMX2400M vide Import Entry numbers 24EMKIM400191410, 24EMKIM400229882 and 24EMKIM400217926 in March 2024.
The Respondent is said to have subjected the consignment to a tariff assessment upon which a ruling was issued by the Tariff Section on behalf of the Commissioner on 4 th April 2024.
That unknown to the Applicant and without proper instructions, the Applicant’s clearing agent and the Respondent entered into an offence settlement on 24 th July 2024, admitting that the Applicant had committed a customs offence.
The Applicant’s case is that the said offences were compounded and the Applicant only came to learn of the said settlement when the Respondent demanded the said tariffs as assessed, on 21 st August 2024.
That the ex-parte Applicant commenced its own investigations concerning how the clearing agent had proceeded to settle the offences without its involvement. The said investigations are said to have involved engaging the clearing agent and reporting the matter to the police.
The Applicant claims that its company officers recorded statements with the police and the Applicant had crucial evidence that the settlement by the Respondent and their Clearing agent had been fraudulently done.
The Applicant takes issue with the said settlement for compounding offences and has sought to review the said settlement entered into by the Respondent and the clearing agent who allegedly had no instructions to enter into such arrangement.
That being outside the statutory timelines to file a review with the Respondent, the Applicant on the 20 th February 2025 made an application for late review with the Respondent to review the said decision. However, that the Respondent on 24 th February 2025 through a letter, informed the Applicant that it had declined its review of the compounded offences yet what the Applicant had made before the Respondent was an application to make a late review application.
According to the Applicant, the Respondent has the requisite powers to determine a review under Section 219(3)(e) of the East African Community Customs Management Act, 2004 and that therefore the same ought not to be confused with an appeal.
It is also asserted that the Respondent’s assertions that Section 229 of the East African Community Customs Management Act 2004, does not apply to the Ex Parte Applicant is misconceived and that decisions arising from compounding of offences can only be final and not subject to an appeal if the same are not unchallenged.
The Applicant also filed a supplementary affidavit sworn by Peter Gordon Scotts on 19 th June 2025. From the said affidavit, the Applicant’s further case is that once a party to the settlement under Section 219 of the EACCMA challenges the process of how the compounding of offences was done, then the same cannot be said to be final and not subject to an appeal.
The Applicant asserts that Section 219(2) of the EACCMA provides that the Respondent shall not exercise the powers to compound unless the person admits in a prescribed form that they have committed an offence, and that where a party challenges that they have not admitted the offences settled/compounded by the Respondent, then such compounded offences and orders cannot be said to be final and not subject to appeal.
The Applicant reiterates that in fact, what it sought from the Respondent through the letter dated 20 th February 2025 was a request for extension of time to lodge a review against the offences compounded but the Respondent in its decision dated 24 th February 2025 indicated that it was not within the jurisdiction and powers of the Commissioner of Customs to entertain any appeal outside the time allowed.
That this assumption by the Respondent that it has no such powers was an abdication of the Respondent’s role under Section 229(3) of the EACCMA which provides that a person directly affected by the decision or omission of the Commissioner may lodge a review albeit after the time specified.
The Applicant claims that the Respondent has only provided a port pass of Wilson Kahiro who appears nowhere near the signed documents in relation to the compounding offences. Further, that no evidence has been provided of Japheth Kilio the person alleged to have signed the offence mitigation forms. This according to the Applicant, is despite the fact that compounding of offences is criminal in nature and therefore the Respondent ought to have exercised some caution which they did not.
The Applicant also states that the Respondent did not consider the reasons for which it sought for extension of time to file a review out of time. It is also the Applicant’s case that as much as it is bound by the actions of their agents pursuant to section 148 of the Act, the same does not extend to the agent binding it to criminal liability which is personal.
That the Respondent did not comply with the requirements of section 219 (2) of EACCMA as it failed to conduct due diligence upon the persons entering into settlement the compounding of the offences by accepting settlements signed by Japheth Kilio and relying on port pass by Wilson Kahiro.
The Applicant further states that the Respondent has proceeded to collect taxes and that it is not a bar and should the court quash the said decision dated 24 th February 2025, then any amounts collected from the said decision ought to be refunded to the applicant.
The Applicant also filed written submissions dated 19 th June 2025. It is submitted that the process leading to the compounded offences by the Respondent was flawed, and as such any action arising from the said process did not meet the requirements of Section 219 of the EACCMA thus the same was null and void. The Applicant also relies on Section 219 of the EACCMA on settlement of cases by the Commissioner.
The Applicant submits that the compounding of offences was not properly done by the Respondents, and that in fact, the Respondent has not provided any evidence of Japheth Kilio the person alleged to have signed the offence mitigation forms.
It is the Applicant’s further submission that the Respondent does not exercise the powers to compound unless the person admits in a prescribed form that they have committed an offence. That once the Applicant challenges the propriety of the offences settled /compounded by the Respondent, then such compounded offences and orders cannot be said to be final and not subject to appeal.
The Applicant submits that the process leading to the compounding of offences by the Respondent having been flawed, any action arising from the said process did not meet the requirements of Section 219 of the EACCMA thus the same was null and void.
Reliance is placed on the case of MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172] where the court is said to have held that if an act is void, it is automatically a nullity in law, incapable of being validated and any proceedings based on it are equally void and bound to collapse.
The Applicant submits that a criminal offence is so personal and that as such, the same cannot be left to an agent and an agent just like a lawyer cannot bind its clients in a criminal case.
The Applicant submits that the Respondent unreasonably denied it an opportunity to review the compounded offences when it made a decision that it is not within the jurisdiction and powers of the Commissioner of customs to entertain any appeal outside the time allowed.
The Applicant submits that the decision by the Respondent was grossly unreasonable/ outrageous and in defiance of logic or acceptable moral standards as was held in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation (1948) 1 K.B 223 .The Applicant further places reliance on the case of OJSC Machines Ltd, Transcentury Limited and Civicon Limited (Consortium) vs Public Procurement Administrative Review Board of Kenya & 2 others (201) eKLR , where the Court is said to have observed that the object of judicial review is to safeguard citizens from harm by ensuring that statutory bodies neither abuse the powers entrusted to them nor act beyond the limits of their lawful mandate.
The Applicant submits that it is entitled to the judicial review writs of certiorari, mandamus and prohibition and to this end, the Applicant relies on the case of Republic vs. Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996 .
The Applicant submits that the decision arrived at on 24 th February 2025 is an abdication of the Respondent’s statutory power, and the Respondent considered matters it ought not to have considered. Further, that it failed to consider an issue it ought to have considered, and as such the same is fit for quashing vide certiorari.
With regard to mandamus, the Applicant submits that it is entitled to the said order as the Respondent is required under Section 229(3) of the EACCMA to make the said decision.
Additionally, that even though the Respondent has proceeded to enforce the same, once the Court finds that the decision was irregular and quash it, then any subsequent act by the Respondent will be a nullity and the Court can issue appropriate reliefs.
The Respondent’s Response
In response to the Notice of Motion, the Respondent filed a replying affidavit on 5 th June 2025. The affidavit is sworn on 4 th June 2025 by Tabitha Shikanda who introduces herself as an officer of Kenya Revenue Authority.
The Respondent’s case is that the Kenya Revenue Authority is established under Section 5(1) of the Kenya Revenue Authority (KRA) Act as an agency of the Government for the collection and receipt of all revenue.
That under Section 5(2) of KRA Act, the Respondent is required to administer and enforce all provisions of the written laws set out in Part I & II of the First Schedule to the KRA Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. That under Part I of the First Schedule to the KRA Act, the Respondent enforces the East African Community Customs Management Act, 2004.
According to the Respondent, in March 2024, the Applicant through their clearing agents Continental Logistics Networks Limited imported a consignment of stainless-steel rods size 4.5 MMX2400M vide Entry No. 24EMKIM400191410, 24EMKIM4000229882 and 24EMKIM400217926.
The Respondent states that upon importation, there arose a dispute concerning misclassification of goods imported by the Applicant under import Entry No. 24EMKIM400191410, 24EMKIM4000229882 and 24EMKIM400217926.
It is stated that the said consignments were subjected to a tariff assessment, and it was noted that identical goods from the same exporter which were being imported by different consignees were being classified differently. That the Respondent after subjecting the said consignments to analysis issued a tariff ruling on 4 th April 2024.
The Respondent states that the Applicant appealed against this ruling but the appeal was denied and the previous ruling upheld on 17 th May 2024.
That the Applicant re-appealed the said ruling vide a letter received on 12 th July 2024 which the Respondent responded to on 10 th August 2024 informing the Applicant that the indulgence was the final communication from the Respondent on the matter and that the Respondent considered the dispute resolved as per Section 229 of the EACCMA.
The Respondent’s contention is that the Applicant through its Clearing Agent (Continental Logistics Network Limited) accepted the entry amendments as amended by applicants as a gesture that they indeed were in agreement with the proposed change in Tariff on the entry as communicated by the respondent through the Tariff rulings.
The Respondent states that on 24 th July 2024 the Applicants clearing agent signed the request for settlement forms admitting that the importer had indeed committed an offence.
That the said mitigation of offences forms and request for settlement forms were properly presented by the Clearing agent representatives and was properly identified with their port pass identity card as a representative of the Clearing Agent.
The Respondent states that the offences were raised and compounded through case reference numbers F71/0004741/2024, F71/0004756/2024 and F71/0004740 /2024 respectively. That as a result, the Applicant generated the following Eslips for offences on 25 th July 2024 as follows; 1020240000873001 for Kshs 1,385,442, 1020240000872982 for Kshs 1,375,747, 1020240000872984 for Kshs 401,373.
According to the Respondent, it has on several occasions requested the payment of unpaid duty from the applicant but that the applicant has refused/neglected to pay the said duty and as a result, the respondent detained the Applicant’s consignment registered under Import Entry No. 24EMKIM400770589 to compel the applicant to pay the outstanding taxes pursuant to Section 130 of the East African Customs Management Act.
The Applicant is said to have gone to court on 25 th October 2024 in Kiambu High Court Constitutional and Human Rights Petition No. E042 of 2024 to compel the Respondent to release the consignment detained under Import Entry number 24EMKIM400770589. However, that the Applicant withdrew Kiambu High Court Constitutional and Human Rights Petition No. E042 of 2024 on 7 th April 2025.
The Respondent states that it released the consignment upon provision of security by way of a bank guarantee amounting to the taxes of Kshs 10,993,853 which were in dispute. The bank guarantee’s validity was 6 months expiring on 7 th May 2025.
That on 20 th February 2025, the Applicant wrote to the Respondent requesting for extension of time to lodge a review against the offences compounded on 24 th July 2024. The Respondent states that it considered the Applicant’s application/request and rejected the said application on 24 th February 2025 in view of Section 147 of the EACCMA 2004, which provides that a duly authorised agent performing any acts on behalf of the owner of the goods shall be deemed to be the owner of the goods.
The Respondent’s decision, it is contended, was based on Section 219 of the EACCMA which is said to provide that the Respondents’ orders on compounding of offences are final and not subject to appeal.
That the Applicant’s bank guarantee’s validity being for 6 months and expiring on 7 th May 2025, the Respondent proceeded to liquidate the same on the 22 nd April 2025 after informing the bank to liquidate the same.
The Respondent’s case is that if the Applicant seeks to challenge the compounded offences, then the Applicant ought to make an application to set aside the said order, a remedy which is not provided for under the EACCMA and which cannot be challenged under Section 229 of the EACCMA.
The Respondent maintains that it was under no obligation to extend time for the Applicant’s late review request since such discretion under Section 229(3) of the EACCMA is conditional and was not satisfied in this case. It argues that mandamus cannot compel it to act outside its legal powers and that under Sections 2(1) and 148 of the EACCMA, the Applicant is bound by the acts of its duly authorised clearing agent who properly executed the compounding forms after admitting the offences through the signing of settlements.
It is contended That any claim of fraud, lies against the applicant’s agent in tort and not against the Respondent. Further, that having lawfully exercised its powers in compounding the offences and already liquidated the Applicant’s bank guarantee to recover outstanding taxes, the Respondent asserts that prohibition is unavailable as the matter has been overtaken by events. Accordingly, it urges this Court to dismiss the application herein with costs while it continues to discharge its statutory mandate.
The Respondent also filed written submissions dated 23 rd June 2025 on 24 th June 2025. The Respondent argues that the Applicant was bound by the actions of its agent (Continental Logistics) when the agent compounded the offences pursuant to Section 219 of the EACCMA . The Respondent also places reliance on Section 148 of the EACCMA on liability of owner for acts of duly authorized agent.
Reliance is also placed in the cases of Republic v Kenya Revenue Authority Ex-parte African Boot Company Limited [2012] KEHC 4298 (KLR ) and Republic vs. Kenya Revenue Authority Ex parte Alltex EPZ Limited Nairobi High Court Judicial Review Application No . 709 of 2008 where the court is said to have held that the importer remains responsible for the conduct of its agent in all circumstances.
The Respondent submits that that the Applicant has a remedy against their agents in tort and as such, should not be allowed to escape liability as a result of their agent’s actions.
It is further submitted that the Respondent has no power under Section 229 of the EACCMA to review compounded offences under Section 219 of the EACCMA. The same is said to have been as a result of the instructive reading of Section 219(3)(e) of the EACCMA.
The Respondent also submits that it properly disallowed the Applicant’s application and that the Applicant ought to have moved this Court in the first instance to challenge the said compounding, and that it was not the one to determine the application.
The respondent relied on the case of Commissioner General (TRA) Vs Mohamed Ali Salim & Anor Civil Appeal No.80 of 2018 where the Court is said to have held that a decision of a quasi-judicial body which is final and not appealable can be challenged by seeking judicial review before the High Court.
The Respondent submits that the Applicant is not entitled to the order of certiorari as the decision by the Respondent to decline extension of time was guided by Section 219 of the EACCMA. The Applicant, it is contended, has not proven that the decision was replete with any ground for the grant of judicial review orders as elucidated in the case of Republic V Kenya Revenue Authority Exparte Yaya Towers Limited [2008] eKLR.
The Respondent submits that the Applicant is not entitled to the order of mandamus as the Respondent has no powers to consider an application for extension of time on compounded offences where the Respondent has no such powers. To this end, the Respondent places reliance on the case of Jotham Mulati Welamondi v Chairman, Electoral Commission of Kenya [2002] KEHC 1123 (KLR ).
On prohibition , the Respondent submits that the writ cannot issue as the same has already been overtaken by events, and thus this Court cannot issue an order in vain hence the application should be dismissed.
Analysis and Determination
From the notice of motion, affidavits in support and opposition thereto and submissions of the respective parties all summarized herein above, the following issues arise for determination:
Whether a review under Section 229 of the East African Community Customs Management Act, 2004 (EACCMA) is available in respect of offences compounded under Section 219 of the same Act and therefore whether the Commissioner had power to extend the statutory period for lodging such a review, which was filed 20/2/2025 seeking to extend time to review the decision made on 24 th July 2024.
Are there any jurisdictional issues in this matter and if so, what is their effect?
Whether, in light of the Applicant’s conduct and the circumstances of the case, the Respondent acted unlawfully, irrationally, or in breach of procedure in declining to entertain the late review application.
What orders should the court make including the question of costs if any?
I shall address and determine the foregoing issues collectively and cumulatively. On the first issue, it is not in dispute that the respondent herein, The Commissioner of Customs Control (the Commissioner) as defined under section 2 of the EACCMA and appointed under section 5 of the same Act bears the statutory mandate of the management and control of the Customs including the collection of, and accounting for, Customs revenue in the respective Partner State.
Section 5(1) of the Kenya Revenue Authority Act (KRA) Act on the other hand establishes the Authority as the agency charged with this responsibility, while Section 5(2) obligates the Authority to administer and enforce the provisions of the written laws set out in the First Schedule, including the East African Community Customs Management Act, 2004 (EACCMA).
In the discharge of the statutory mandate, the Respondent is empowered to take enforcement action against non-compliance and the Act expressly criminalizes the failure to pay customs duties/tarriffs lawfully due. Section 203 of the EACCMA makes it an offence for any person to evade payment of duty or to in any way be knowingly concerned in the fraudulent evasion of such duty.
Against that background, the commencement point for analysis is Section 219 of the EACCMA, which empowers the Commissioner respondent herein to compound customs offences where a written admission is made, by imposing a monetary penalty.
Section 219 of the EACCMA provides as follows:
“Settlement of Cases by the Commissioner
219. (1) The Commissioner may where he or she is satisfied that any person had committed an offence under this Act in respect of which a fine is provided or in respect of which any thing is liable to forfeiture, compound the offence and may order such person to pay a sum of money, not exceeding the amount of the fine to which the person would have been liable if he or she had been prosecuted and convicted for the offence, as the Commissioner may deem fit; and the Commissioner may order any thing liable to forfeiture in connection with the offence to be condemned.
(2) The Commissioner shall not exercise his or her powers under subsection (1) unless the person admits in a prescribed form that he or she has committed the offence and requests the Commissioner to deal with such offence under this section.
(3) Where the Commissioner makes any order under this section—
(a) the order shall be put into writing and shall have attached to it the request of the person to the Commissioner to deal with the matter;
(b) the order shall specify the offence which the person committed and the penalty imposed by the Commissioner;
(c) a copy of the order shall be given to the person if he or she so requests; (d) the person shall not be liable to any further prosecution in respect of the offence; and if any prosecution is brought it shall be a good defence for the person to prove that the offence with which he or she is charged has been compounded under this section; and
(e) the order shall be final and shall not be subject to appeal and may be enforced in the same manner as a decree or order of the High Court.
On the other hand, Section 229 (1), (2) and (3) of the EACCMA provides as follows:
(1)A person directly affected by the decision or omission of the Commissioner or any other officer on matters relating to Customs shall within thirty days of the date of the decision or omission lodge an application for review of that decision or omission.
(2) The application referred to under subsection (1) shall be lodged with the Commissioner in writing stating the grounds upon which it is lodged.
(3) The Commissioner shall, within a period not exceeding thirty days of the receipt of the application under subsection (2) and any other information the Commissioner may require from the person lodging the application, communicate his or her decision in writing to the person lodging the application stating reasons for the decision".
Section 230 (1) and (2) of EACCMA provide for appeal mechanisms where a person is aggrieved by the decision of the Commissioner made under section 229 above and it provides as hereunder:
(1) "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.
(2) A person intending to lodge an Appeal under this section shall lodge the Appeal within Forty-five days after being served with the decision, and shall serve a copy of the Appeal on the Commissioner.
A reading of the above provisions of the EACCMA reveals that the said sections must be read together and not one in isolation of the other. The import of Section 229(1), (2) and (3) of EACCMA above is that the Applicant who was dissatisfied with the decision made by the Commissioner in the matter relating to customs (compounding of offences being one of them under the Act, was required, in the first instance to lodge an application in writing for review of the Respondent''s decision, stating the grounds upon which the review is lodged. On receipt of the application for review of the decision, the Respondent is required to respond within thirty days of receipt of the application. In the event that the Respondent''s decision is not in favour of the Applicant, then the latter has a right of Appeal to the Tribunal, as stipulated in section 230 of the EACCAMA. Where such review is not filed within 30 days stipulated, then the Commissioner may be moved to accept an application for review outside the 30 days.
it is further worth noting that Section 12 of the Tax Appeals Tribunal Act (TATA), provides for Appeals to the Tribunal over the Respondent''s decisions on any tax dispute. The section provides as follows:
A person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner. [emphasis added]
Section 2 of the TATA defines an Appeal as "an Appeal to the Tribunal against a decision of the Commissioner under any of the tax laws." This section read together with Section 12 of the same Act stated herein above in the judgement, clearly shows that the decision for the Respondent which is Appealed to the Tribunal is a decision made pursuant to Section 229 of EACCMA.
The tax laws are expounded in Section 2 of the TATA wherein ЕАССМA is included.
It is also important to note that Commissioner in the context of these proceedings is the head of Customs and Border Control and is one of the Commissioners appointed under section 13 of the Kenya Revenue Authority Act which provides:
13. Appointment of Commissioners and other officers
(1) The Board shall appoint to the service of the Authority; such Commissioners as may be deemed necessary.
On the other hand, the Tax Appeals Tribunal Act defines Commissioner as:
"Commissioner” means the Commissioner appointed under Kenya Revenue Authority Act;
Section 5 of the EACCMA mandates the appointment by each Partner State a Commissioner responsible for the management of Customs and other staff as may be necessary for the administration of the Act and the efficient working of the Customs.
According to the Respondent, after subjecting the applicant’s consignments to analysis, issued a tariff ruling on 4th April 2024, the Applicant appealed against this ruling but the appeal was dismissed and the previous ruling upheld by Tariff on 17th May 2024. Further that the Applicant re-appealed the said ruling vide a letter received on 12th July 2024 which the Respondent responded to on 10th August 2024 informing the Applicant that the indulgence was the final communication from the Respondent on the matter and that the Respondent considered the dispute resolved as per Section 229 of the EACCMA.
In other words, according to the Respondent, the applicant after receiving the decision on tariffs, challenged the decision by way of an appeal but the appeal was dismissed and it reappealed without success.
However, although Part XX is headed appeals, section 229 which falls under Part XX of the Act is specifically dedicated to review of the decision or omission by the Commissioner within 30 days and extension of time for review where such time has lapsed. It follows that the applicant was right in its submission that the Commissioner had jurisdiction to review the decision relating to compounding of offences in as much as such decision would be final and not appealable under section 219 of the Act.
The Applicant in a letter dated 20 th February 2025 sought to invoke Section 229(3) of the EACCMA after lapse of the thirty-days period, urging the Commissioner to admit a late review. The Applicant in its letter stated that th
[...truncated]