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Court of AppealDismissedCivil Appeal (Mombasa) – appeal against the dismissal of Mombasa Judicial Review Application No. E030 of 2021 (JR)· [2026] KECA 555 (KLR)

Executive Super Rides Limited v Commissioner of Customs & 3 others; Pandya & another (Interested Parties) (Civil Appeal E065 of 2023) [2026] KECA 555 (KLR)

Court of Appeal of Kenya
13 March 2026
9,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld the auction of an imported vehicle, confirming importers must first use tax dispute channels before going to court.

What this practically means

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Executive summary

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The appellant imported a Toyota Land Cruiser Prado from Japan which arrived at Mombasa on 23rd July 2020. It failed to lodge entry within 21 days (entry was lodged on 29th December 2020) and only paid assessed taxes of Kshs. 2,115,452 on 19th May 2021. The Commissioner issued Gazette Notice No. 1057 of 5th February 2021 under Section 42(1) of the East African Community Customs Management Act (EACCMA), and the vehicle was auctioned on 9th March 2021 to the 2nd interested party, the highest bidder at Kshs. 5,120,000, who was subsequently registered as owner. Mativo, J. dismissed the appellant's judicial review application, finding that the appellant had failed to exhaust the internal review mechanism under Section 229(1) of EACCMA and the Tax Appeals Tribunal as required by Section 9(2) of the Fair Administrative Action Act; that EACCMA is self-contained and the Auctioneers Act inapplicable; and that fraud was not proved. The Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJJA) dismissed the appeal. It held that the auction complied with Sections 34 and 42 of EACCMA; that Section 38 of the Auctioneers Act is neither inconsistent with EACCMA nor unconstitutional, EACCMA taking precedence under Section 253; that exhaustion of remedies is jurisdictional and a court may raise the issue suo moto; and that the 2nd interested party was a bona fide purchaser for value. The High Court judgment of 19th August 2022 was upheld, with costs to the respondents and interested parties.

Key legal issues

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01

Whether the auction complied with the statutory procedure under EACCMA

Holding

The auction was lawful. The appellant failed to enter the vehicle within 21 days and pay taxes within the prescribed periods; the Commissioner issued the Gazette Notice under Section 42(1) of EACCMA and could not be faulted for exercising his statutory mandate.

Reasoning

The vehicle arrived on 23rd July 2020; entry ought to have been made by 13th August 2020, but entry was only lodged on 29th December 2020 and taxes paid on 19th May 2021, after the auction on 9th March 2021. The Gazette Notice gave owners a second opportunity to redeem within 30 days. The Bill of Lading named Africa Forwarding Agency Limited as the party to be contacted, matching the Gazette Notice consignee, so the appellant's complaint of non-notification could not hold.

p. 14
02

Whether the EACCMA or the Auctioneers Act governed the auction; constitutionality of Section 38 of the Auctioneers Act

Holding

EACCMA is self-contained and takes precedence over Partner States' laws under Section 253; Section 38 of the Auctioneers Act ousts customs auctions from the Act and is neither inconsistent with EACCMA nor unconstitutional.

Reasoning

Section 38 of the Auctioneers Act expressly excludes auctions conducted under EACCMA. The 2019 amendment to Section 243 of EACCMA provides that Partner State legislation inconsistent with EACCMA shall not apply to customs sales. The wording of Section 38 and Sections 243 and 253 of EACCMA is unambiguous, and harmonious application of EACCMA required excluding homegrown auction statutes.

p. 15
03

Whether the appellant was required to exhaust internal remedies (Tax Appeals Tribunal) before filing judicial review, and whether the judge could raise the issue suo moto

Holding

Exhaustion of remedies is jurisdictional. The appellant's recourse against the Commissioner's decision lay under Section 229(1) of EACCMA to the Tax Appeals Tribunal; failure to exhaust divested the High Court of jurisdiction, and the judge was entitled to raise the issue suo moto.

Reasoning

Section 9(2) of the Fair Administrative Action Act bars judicial review of administrative action unless internal mechanisms and remedies under written law are first exhausted, and Section 9(3) requires the court to direct exhaustion. Jurisdiction is a threshold issue that may be raised at any stage, even by the court on its own motion, since without it a court cannot take one step.

p. 18
04

Whether the 2nd interested party obtained good title

Holding

The 2nd interested party was a bona fide purchaser for value without notice of any illegality; her title was not tainted by fraud.

Reasoning

She participated in the auction without fault, emerged as the highest bidder at Kshs. 5,120,000, paid all requisite statutory charges, and was registered as owner. No illegality or fraud was alleged or proved as against her.

p. 14

Legal principles established

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  • The doctrine of exhaustion of remedies is jurisdictional: where an internal dispute resolution mechanism exists, a court is divested of jurisdiction until it is exhausted, and may raise the issue suo moto
  • A court seized of a dispute that belongs before a statutory tribunal has a duty to refer parties back even absent a party's request
  • For customs sales by auction in the EACCMA Partner States, EACCMA takes precedence and the Auctioneers Act does not apply; Section 38 of the Auctioneers Act is neither inconsistent with EACCMA nor unconstitutional
  • Goods not entered or removed from the port of discharge within 21 days are deemed to be in a customs warehouse, and if not lawfully removed within 30 days after notice, are deemed abandoned to Customs for sale by public auction under Section 42(1) of EACCMA

Court orders

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  1. 1.Appeal dismissed
  2. 2.Judgment and decree in Mombasa Judicial Review Application No. E030 of 2021 (JR) delivered by Mativo, J. on 19th August 2022 upheld
  3. 3.Costs to the 1st, 2nd and 4th respondents and the 1st and 2nd interested parties
On appeal from
High Court of Kenya at Mombasa
Mombasa Judicial Review Application No. E030 of 2021 (JR)
Jurisdiction invoked
First appeal to the Court of Appeal under rule 31(1) of the Court's Rules from the High Court's dismissal of a judicial review application; the court exercised a re-appraisal mandate as a first appellate court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Executive Super Rides Limited v Commissioner of Customs & 3 others; Pandya & another (Interested Parties) (Civil Appeal E065 of 2023) [2026] KECA 555 (KLR)", Case Analysis (2026). Civil Appeal (Mombasa) – appeal against the dismissal of Mombasa Judicial Review Application No. E030 of 2021 (JR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/555/eng@2026-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.