Automated Summary
Key Facts
The Applicant, Republic of Kenya, owns Plot No. 2448 at Makupa Causeway, Mombasa. The plot was leased to CPC Freight Services Ltd (CPC) for five years, during which CPC was appointed by the Commissioner of Customs Services to operate an Internal Container Depot. Following an arbitration, the Applicant terminated the lease with CPC and requested the Commissioner to de-gazette CPC's license to enable the new tenant, Unifreight Cargo Handling Limited, to obtain a license for the same premises. The Commissioner refused, stating no application for de-gazettement had been received from CPC and no application from Unifreight for a license under Regulation 57(1) of the EACCM Regulations. The Applicant argues that the non-revocation of CPC's license prejudices its business interests as a landlord, given the premises are no longer available for CPC's use.
Issues
- The procedure the Commissioner must follow to revoke a licence for an Internal Container Depot, including compliance with legal requirements and natural justice as outlined in Sections 12 and 14 of the East African Community Customs Management Act (EACCMA) and Regulation 57 of the EACCM Regulations.
- Whether the Commissioner of Customs Services breached the procedure for revoking the licence issued to CPC Freight Services Ltd by failing to act on the landlord's alert regarding lease termination and by requiring CPC to apply for de-gazettement.
- Whether Unifreight has submitted a proper application for the Commissioner's consideration to operate a transit shed on Plot No. 2448, Makupa Causeway, Mombasa, as required by Regulation 57(1) of the EACCM Regulations.
Holdings
- The court determined it cannot compel the Commissioner to license Unifreight Cargo Handling Limited because there was no evidence of a proper application being submitted, and the Commissioner retains discretion under the law to grant or refuse licenses. The court emphasized it will only intervene if the Commissioner acts unreasonably or outside jurisdiction, which was not demonstrated here.
- The court held that the Commissioner of Customs Services has a public duty to consider revoking the license issued to CPC Freight Services Ltd when alerted to a potential breach of conditions, specifically the termination of the lease agreement by the landlord. While the court cannot compel the Commissioner to de-gazette the license directly, it directed the Commissioner to review the matter within six months to determine if revocation is warranted.
Remedies
- The Court ordered that each party to the proceedings shall bear its own costs.
- The Court directed the Commissioner of Customs Services to consider whether an occasion has arisen requiring the revocation of the licence issued to CPC Freight Service Ltd in respect to Plot No. 2448 Makupa Causeway Mombasa, to be done within 6 months of the judgment date.
Legal Principles
- The court applied judicial review principles to evaluate whether the Commissioner of Customs Services acted within legal bounds and in a reasonable manner when refusing to de-gazette a license and process a new application. This included examining if the Commissioner's decision was ultra vires statutory requirements or unreasonable under Wednesbury standards.
- The court emphasized the Commissioner's obligation under natural justice to investigate alerts of potential license condition breaches, particularly when raised by the landlord of the licensed premises. This duty was framed as part of constitutional requirements for fair and lawful administrative procedures.
Precedent Name
Mureithi & 2 Others -Vs- The Attorney General & 4 Others
Cited Statute
- Law Reform Act (CAP. 26 of the Laws of Kenya)
- East African Community Customs Management Regulation 2006
- East African Community Customs Management Act
- Customs and Excise Act
Judge Name
F. TUIYOTT
Passage Text
- The second request of the motion is even more difficult to grant. The Court is asked to compel the Commissioner to licence Unifreight. This request is untenable for two reasons. First it has not been shown that Unifreight has indeed applied for the licence as required by the law. Regulation 57(1) of EACCM Regulation requires that an application for the licensing of premises or an internal container depot is made in a specific form. The Applicant has not proved that Unifreight has complied with this procedure. Second, even if there was a proper application before the Commissioner the Court cannot interpose to direct the Commissioner on how it should process the application. The discretion as whether or not to grant or refuse the licence is given to the Commissioner under Section 14 of EACCMA.
- It is not in dispute that Applicant took back possession of Plot No. 2448 and is no longer available for use by CPC. It seems that an occasion may have arisen requiring the licence issued to CPC to be revoked. I am unable to accede to the suggestion by the Commissioner of Customs Services contained in her letter of 16th August 2012 that the licence to CPC could only be de-gazetted upon CPC itself applying for de-gazettment. Having said that the decision as to whether or not to revoke the licence rests in the discretion of the Commissioner and this Court cannot direct him/her on the manner to exercise it. It is nevertheless the view of this Court that where, like here, the Commissioner is alerted that there may be a breach of condition imposed on a licence then the Commissioner has a public duty to consider and follow up on the alert. This duty is even greater where the alert does not appear to be frivolous. In this case the alert was from the landlord of the licencee informing the Commissioner that the lease over the appointed premises had been terminated.