Automated Summary
Key Facts
Civicon Limited operated a licensed transit godown in Mombasa where KivuWatt Limited's Separator machine was stored. Civicon claimed a lien over the Separator due to unpaid handling charges (USD 72,750 as of 17.12.2013) and contractual disputes. Kenya Revenue Authority (KRA) released the Separator to KivuWatt via a consent letter (18.11.2013) without involving Civicon. The court dismissed Civicon's lien claim due to lack of possession but allowed the petition to proceed on whether KRA's consent violated Civicon's right to storage/handling charges.
Transaction Type
Construction Contract for methane gas extraction barge
Issues
- The court examined whether the Kenya Revenue Authority (KRA) and the Commissioner unlawfully consented to release the Separator machine stored in Civicon's transit godown without the petitioner's consent, contravening its constitutional rights to property (Article 40) and fair administrative action (Article 47). The petitioner argued that KRA's actions jeopardized its legitimate claim to storage and handling charges, as well as contractual disputes with KivuWatt Limited.
- The court determined that the petitioner's claims regarding contractual disputes and its lien over the Separator machine had already been adjudicated in two previous High Court cases. These were dismissed as an abuse of process, with the court emphasizing that remedies lay in appeal or review, not through a constitutional petition.
- The court found that the petitioner had an arguable case regarding the legality of the consent letter dated 18.11.2013, which allowed release of the Separator without its involvement. The issue centered on whether KRA could lawfully authorize release while the petitioner's undisputed right to storage and handling charges remained unpaid, potentially breaching constitutional protections.
Holdings
- The court allowed the petition to proceed on the issue of whether the consent letter dated 2013-11-18 between the respondents was lawful, specifically concerning the petitioner's right to storage and handling charges.
- The court struck out the petitioner's claims regarding contractual disputes and lien over the Separator, as these issues were already determined in previous suits (HCC No. 36 of 2013 and HCC No. 117 of 2013).
Remedies
- The petition is permitted to continue solely on the issue of whether the consent letter dated 18.11.2013, authorizing release of the Separator machine without the petitioner's involvement, was lawful under constitutional rights to storage and handling charges.
- The court partially granted the 2nd respondent's application to strike out the petitioner's claims related to contractual disputes and lien over the Separator machine, as these issues had already been addressed in prior court rulings.
- The court awarded costs in favor of the 2nd respondent for the application to strike out parts of the petition.
Legal Principles
- The court held that the petitioner's constitutional petition constituted an abuse of process by re-litigating matters already determined in prior High Court proceedings (HCC No. 36 of 2013 and HCC No. 117 of 2013).
- The court emphasized that the High Court's Constitutional Division cannot supervise other divisions of the same court, citing Article 165(6) of the Constitution and principles established in Peter Ng'ang'a Muiruri v Credit Bank Ltd.
Precedent Name
- Ventaglio International SA and Anor. v The Registrar of Companies and Anor
- Beta Healthcare International Ltd. v Commissioner of Customs, and 2 Ors.
- Peter Ng'ang'a Muiruri v Credit Bank Ltd and Anor
- A-G of Kenya v. Prof. Peter Anyang' Nyong'o
Key Disputed Contract Clauses
The EPC Agreements between Civicon and KivuWatt contained an arbitration clause mandating dispute resolution through arbitration. The court in HCC No. 36 of 2013 stayed the proceedings pending arbitration, as required by the clause, which became a central issue in determining whether Civicon's subsequent constitutional petition constituted re-litigation.
Cited Statute
- Constitution of Kenya
- East African Community Customs Management Act, 2004
- Customs and Excise Act
Judge Name
- Muya, J
- Kasango, J
- Edward M. Muriithi
Passage Text
- “I find that as the twin issues... have already been determined by the High Court... the same cannot be re-litigated... The only issue which remains valid in the petition is whether the respondents could lawfully enter into a consent for the release of the separator machine without involving the petitioner...”
- “A general lien entitles a person in possession of chattels to retain them until all claims or accounts of the person in possession against the owner of the chattel are satisfied.”
- “It is clear that although the Judge did not deal with the issue of 'the propriety, legality, constitutionality or lack thereof of the consent' the court did determine the question of the petitioner's lien over the separator has already been determined by the High Court...”
Damages / Relief Type
- Declaratory order that the consent letter dated 18.11.2013 was unconstitutional for breaching constitutional rights to property and fair administrative action.
- Injunction to prohibit Kenya Revenue Authority from releasing the Separator machine until constitutional issues are resolved.
- Costs awarded to the 2nd respondent (KivuWatt Limited) for the application to strike out parts of the petition.