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JudgmentWINNY OCHWAL T/A OGUTTU MBOYA, OCHWAL & PARTNERS ADVOCATES VS LEGAL SERVICES & BOARD COORDINATION/TAX DISPUTE RESOLUTION INDEPENDENT REVIEW OBJECTIONS - WESTERN REGION & 2 OTHERS AND THE COMMISSIONER OF DOMESTIC TAXES AND 1 Others4 min read

WINNY OCHWAL T/A OGUTTU MBOYA, OCHWAL & PARTNERS ADVOCATES VS LEGAL SERVICES & BOARD COORDINATION/TAX DISPUTE RESOLUTION INDEPENDENT REVIEW OBJECTIONS - WESTERN REGION & 2 OTHERS AND THE COMMISSIONER OF DOMESTIC TAXES AND 1 Others

High Court at Kisii High Court · · Odera Teresa Achieng

   1. The ex-parte applicant herein filed the application dated 23.10. 24 under Articles 1, ,10, 27(1), & (2 , 47, 48, 50 (1, 159 (1)& (2) ,162 (2) of the Constitution ,Law Reform Act ,Fair Administration Act, Advocate Act, The income tax Act and tax procedures Act and value Added Tax Act Seeking :

(1)…………………………………………..spent

2)  The Honourable court be pleased at grant leave  to the Applicant herein to commence and/ or Institute Review Proceeding, in the nature of Certiorari to bring unto this Honourable court and Quash the Assessment Order made by the Respondents on the 6th day of May 2024 vide Assessment Number KRA202432533468 demanding for additional payment of kshs.895, 999.99 only, on account of VAT for the month of February 2023,without complying with and/ or observing the principle Fair Hearing and the Doctrine of Natural Justice,       whatsoever and/ or howsoever.

3) The Honourable Court be pleased to grant Leave to the Applicant herein to commence and/or intitute Judicial Review Proceedings, in the nature of certiorari to bring unto us this Honourable Court  and Quash the Objection Decision of the Respondents, contained vide Letter dated the 23rd  October  2024 directed to the Applicant rejecting the Notice of Objection and conforming the Assessment Order made by the Respondents on the 6th day of May 2024 vide Assessment Number KRA202432533468 demanding for additional payment of Kshs.895,999.99 only , on account of VAT for the month of Febraruary2023, without complying and/or observing the Principle of Fair Hearing and the Doctrine of Natural Justice, whatsoever and/or howsoever.

4 )The Honourable Court be pleased to grant Leave to the Applicant herein to commence and/or institute Judicial Review Proceedings, in the nature of prohibition, to issue prohibiting the Respondents from demanding and/or further demanding for additional payment of Kshs.895, 999.99 only, on account of VAT for the month of February 2023,pegged on the Assessment Order vide Assessment Number KRA202432533468, without Regard to the Due process of the Law, the Constitution, 2010,the Fair Administrative Actions Act, 2015 and the Doctrine of Natural justice.

5)Leave granted in respect hereof, Do operate as an Order of Stay,staying, barring and/or prohibiting any further Action, including but not limited to the Applicant`s status as captured in the Tax Compliance Certificate Number KRAKSI1382760124 for the year 2023 and /or enforcement of the Decisions of the Respondents made on the 6th day  of May 2024 and 23rd October 2024, respectively, relating to the Assessment Order vide Assessment Number KRA202432533468 and/or Applicant`s tax obligation with regard to the year 2023 declarations, pending the hearing and determination of the substantive Notice of Motion.

6) Costs of the application be borne by the respondent.

7)such further orders as the court may deem fit to grant.

2. The threshold for leave to file   judicial review proceedings was laid down  in the case of    Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 where it was held as follows: “The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. ‘’

3. I have carefully considered the application, the supporting  affidavit  and the annextures . It has emerged that the applicant seek judicial review of the nature of certiorari to move into this court the decisions Kenya Revenue Authourity dated 6.5.24 and 23.10.24 . The same is based on the ground the respondent  was not given right to be heard before the said decisions  were made. the right to be heard is fundamental  . Iam satisfied  that the applicant has an arguable case against the respondents.

In the upshot I issue the following orders in respect to the application dated 23.10.24  ;-

  1. Leave is hereby granted to the ex-parte applicant to file and serve the intended substantive motion of certiorari  against the respondents in terms of prayer 2-5  of the application within 21  days from today  .
  2. The said leave  Do operate as an Order of Stay,staying, barring and/or prohibiting any further Action, including but not limited to the Applicant`s status as captured in the Tax Compliance Certificate Number KRAKSI1382760124 for the year 2023 and /or enforcement of the Decisions of the Respondents made on the 6th day  of May 2024 and 23rd October 2024, respectively, relating to the Assessment Order vide Assessment Number KRA202432533468 and/or Applicant`s tax obligation with regard to the year 2023 declarations, pending the hearing and determination of the substantive Notice of Motion.
  3. Costs be in the cause .
  4. Mention on  20.1.25  for compliance/directions 

Details

Delivered
Court rank
High Court

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