Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] KECA 295 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a judge can correct their own clear mistake in a judicial review case, reviving Nakumatt's tax challenge.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the superior court had jurisdiction to review its own decision given on 6th June 2003 declining leave to apply for an order of judicial review, given that the Judge conceded he wrongly invoked section 33 of the Value Added Tax Act
- 2.Whether Order 44 of the Civil Procedure Rules applies to proceedings under Order 53 of the same Rules
Key legal issues
#Jurisdiction of the superior court to review its own erroneous leave decision in judicial review proceedings
The superior court had residual power to correct its own mistake; the court's error in invoking repealed section 33 of the VAT Act left the applicant without remedy, and review was available to obviate that hardship even though the Law Reform Act has no review provisions and the applicant may have cited a wrong provision.
The court reasoned that judicial review is meant to be a quick, inexpensive procedure and that limitation periods make errors at the leave stage especially prejudicial. Where the court itself, suo motu, raised a jurisdictional issue without hearing the applicant and decided it on a repealed provision, refusing review would be oppressive and an affront to common sense. Citing a wrong provision does not deprive the court of its corrective power.
Whether Order 44 of the Civil Procedure Rules applies to Order 53 proceedings
Left open; the court expressly declined to determine whether Order 44 applies to proceedings under Order 53, resting its decision instead on the court's residual power to correct its own mistake.
The court noted this was the point of departure between the parties but declined to resolve it, stating the question should await another occasion. Its decision was anchored on the residual corrective power rather than the textual reach of Order 44.
Whether Goldenberg v Kilach holds that review is unavailable under Order 53
No; that decision does not so hold.
The court respectfully disagreed with counsel's reliance on the Goldenberg case, holding it does not stand for the proposition that review is unavailable under Order 53, and that in clear cases courts should not decline jurisdiction merely because the law is silent.
Legal principles established
#- A superior court has residual power to correct its own mistake, even where the applicant cited a wrong provision of the law in the review application, and especially where the error was the court's own.
- Review jurisdiction should be exercised sparingly, in very clear-cut cases, to obviate hardship and injustice to a party not to blame for the predicament.
- Review of an ex parte grant or refusal of leave in judicial review proceedings is a very limited jurisdiction to be exercised sparingly and only in clear-cut cases.
Court orders
#- 1.Appeal allowed
- 2.Order of the superior court dated 27th June 2003 set aside
- 3.In place thereof, an order allowing the application dated 10th June 2003 substituted and the dismissal order set aside
- 4.Appellant granted leave to bring an application for orders of certiorari and mandamus as prayed in the chamber summons dated 14th May 2003, to be filed within 21 days from the date of the judgment
- 5.Costs of the appeal and thrown away costs of proceedings before the superior court to abide the outcome of the yet to be filed motion; if the motion is not filed, each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C. Misc. Application No. 508 of 2003
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Law Reform Act and Civil Procedure Rules; appeal from ruling in judicial review leave proceedings
Relief refused
#Spelling out the correct procedure for approaching the court where the court erred at leave stage
The court declined to lay down a procedure because the issue was not fully addressed before it and such applications should be encouraged only in the clearest of cases
Determination of whether Order 44 of the Civil Procedure Rules applies to proceedings under Order 53
The court deferred the question to a future occasion
Costs
Costs of the appeal and the thrown away costs of proceedings before the superior court to abide the outcome of the yet to be filed motion; in the event the motion is not filed, each party to bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result we allow the appeal, set aside the order of the superior court dated 27 th June 2003, and in place thereof substitute an order allowing the application dated 10 th June 2003, set aside the dismissal order and grant the appellant leave to bring an application for orders of certiorari and mandamus as prayed in the chamber summons dated 14th May 2003.
What is important is that the superior court in the matter before us had the residual power to correct its own mistake.
The process of review is intended to obviate hardship and injustice to a party who is, otherwise, not to blame for the circumstances he finds himself in.
even though leave granted ex parte can be set aside on an application, that is a very limited jurisdiction and will obviously be exercised very sparingly and on very clear cut cases
The application to be filed within 21 days from the date of this judgment. The costs of this appeal, and the thrown away costs of proceedings before the superior court, to abide the outcome of the yet to be filed motion.
Issues in the judgment
#The judgment states the decision sought to be quashed was made on 13th March 2006, which is inconsistent with the chronology elsewhere showing the decision was made on 13th March 2003 and leave sought on 20th May 2003
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nthiga v Stower (Environment and Land Case 933 of 2002) [2025] KEELC 8094 (KLR)[2025] KEELC 8094 (KLR)20 Nov 2025
- Yegon v Republic (Criminal Appeal E015 of 2022) [2025] KECA 857 (KLR)[2025] KECA 857 (KLR)14 May 2025applied
- GRD v Republic (Criminal Appeal 90 of 2022) [2025] KECA 59 (KLR)[2025] KECA 59 (KLR)24 Jan 2025followed
- Republic v Land Registrar Trans-Nzoia County & another Ex-parte Turbo Munyaka Co-operative Society Ltd & 4 others [2017] KEELC 469 (KLR)[2017] KEELC 469 (KLR)20 Dec 2017
- Republic v District Land Registrar Bondo & 2 others Ex-parte Chairman, Management Committee of Orengo Catholic Church , Ambrose Dennis Achieng [2017] KEELC 3722 (KLR)[2017] KEELC 3722 (KLR)1 Feb 2017
Cite this brief
#Cite this brief
Caselaw, "Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] KECA 295 (KLR)", Case Analysis (2011). Civil Appeal No. 200 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/295/eng@2011-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.