Commissioner General, Kenya Revenue Authority through Republic v Silvano Onema Owaki t/a Marenga Filling Station [2001] KECA 34 (KLR)

Rule 1(2) of Order LIII requires the statement to set out only the name and description of the applicant, the relief sought and the grounds; the facts relied on belong in the verifying affidavit. The court adopted the Supreme Court Practice and R. v. Wandsworth JJ., ex p. Read, where the English Order 53, in pari materia with the Kenyan Order LIII, was construed the same way. Although the learned Judge had described the statements of fact as worthless, he placed faith in them and decided the application on inadmissible material, vitiating his ruling.

The court examined the statutory scheme: section 175 permits the Revenue merely to lock up or seal the item or place of suspicion; section 199 confers the power of seizure with good-faith protection for officers; section 200 requires notice within one month only where seizure occurs in the owner's absence; section 200(4) gives the owner an opportunity to claim on giving security; and section 202 governs the notice of seizure. Since the sealing and seizure occurred in the presence of the applicant's manager, and the notice followed section 202, the applicant received what Parliament intended.

The court found that the Revenue had complied with section 202 in respect of the notice of seizure which was the subject of the proceedings, that the notice followed closely the requirements of that section, and that nothing done by the Revenue rendered the notice a nullity. The sealing and seizure having been effected in the presence of the applicant's manager, no further notice was needed under section 200. The applicant's failure to obtain independent testing of the fuel left the Revenue's S.G.S. report unchallenged in substance.

Rule 1(4) of Order LIII requires the judge to specifically and expressly order that leave operate as a stay of the particular proceeding. The order made in court on 16 March 1999 did not do so, yet the extracted order purported to stay the seizure notice. An extracted order at variance with the court's order is a nullity. Consequently the applicant's execution of that order, the committal application against Revenue officers, and the sale of the seized fuel without independent testing or security under section 200 were all of no lawful effect.

The applicant alleged that the seizure notice was issued with malice and without a hearing, and relied on newspaper reports of S.G.S. misconduct. He blew hot and cold, his own statement suggesting the products could have been contaminated in transit by export pigment. He demanded testing by an agency unconnected with the Revenue, was refused, and never obtained any independent test. In the absence of proof, malice could not be attributed to the Revenue in the performance of its statutory duties.