Embrio Enterprises Limited v Kenya Revenue Authority [2014] erKLR

Key Facts

Issues

• Whether the defendant's seizure of the consignment was lawful under the East African Community Customs Management Act, 2005.
• Whether the defendant's officers had custody and control of the trucks when they disappeared from the Mombasa Municipal Parking.

Holdings

• The court cited that if a defense raises even one bona fide triable issue, the defendant must be given leave to defend, as established in Moi University v. Vishva Builders Limited. This was reinforced by the Court of Appeal in Isaac Awuondo v. Surgipharm Limited, indicating that the presence of a single triable issue prevents summary judgment.
• The court dismissed the plaintiff's application for summary judgment, ruling that the defendant's defense raised triable issues. The application sought to strike out the defense and enter judgment in favor of the plaintiff, but the court found that the defense had valid grounds for seizure under the East African Community Customs Management Act, 2005, and denied knowledge of the trucks' removal, leading to the conclusion that there were triable issues.

Remedies

• The court dismissed the plaintiff's application for summary judgment, ruling that the defendant's defense raises triable issues.
• The court ordered that costs shall be in the cause, meaning the determination of cost allocation is left to the court's discretion based on the case's outcome.

Legal Principles

Precedent Name

• Moi University v. Vishva Builders Limited
• UAP Provincial Insurance Ltd v. Lenny M. Kivuli
• Isaac Awuondo v. Surgipharm Limited and Another
• Benjamin Deon Musau v. Magdaline Wanjiku Thumbi

Cited Statute

• Civil Procedure Act
• East African Community Customs Management Act

Judge Name

Passage Text

• The plaintiff's claim is that on 10th March,2013, the plaintiff imported 200metric tonnes of sugar from Thailand for onward transmission to Juba, South Sudan through Kampala, Uganda; The consignment was loaded into 4000 bags of 50 kgs each and were put in 8 containers of 20 feet each; upon arrival at the Mombasa Port, Kenya, the plaintiff's agent, Westin Enterprises Limited, lodged the import declaration forms and processed the clearing of the consignment after paying the requisite charges; the consignment was allowed to leave the port of Mombasa under custom escort to the border point after the defendant valued it as KShs.17,000,000/-; on 31st March, 2013 after the plaintiff hired trucks to ferry the consignment to Kampala, the defendant's officials issued an order for the seizure of the goods using form 89 occasioning the seizure of the said trucks and holding at the Mombasa Municipal Parking at Changamwe; the trucks were on the night of the seizure removed from the said parking to an unknown destination where the consignment was removed and the trucks were abandoned within Mombasa; that the plaintiff incurred a cost of KShs. 2,000,000/- in following up the issue with the police and has been occasioned loss of business; that the plaintiff would have earned a profit of KShs. 70,000,000/- from the transaction.
• In an application for summary judgment, an applicant must establish that the defendant has no single triable issue. Amongst the issues derived from the plaintiff's claim is the lawfulness or otherwise of the seizure of the tracks and who had the custody and control of the trucks at the time they disappeared from the Municipal Parking to these issues the defendant's response in its defence was that the seizure was reasonable and admitted the disappearance but denied that the removal was not by its officers amongst others.
• "The law is now settled that if the defence raises even one bona fide triable issue, then the defendant must be given leave to defend."