https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/100

**REPUBLIC OF KENYA** **IN THE TAX APPEALS TRIBUNAL** **TAX APPEAL NO. E511 OF 2025** **A-ONE COLLECTION .……………………………………………………APPELLANT** **-VERSUS-** **COMMISSIONER OF MICRO & SMALL TAXPAYERS………………..RESPONDENT** **JUDGMENT** # **BACKGROUND** 1. The Appellant is a resident limited liability company. 2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Cap 460 Laws of Kenya (KRA Act). Under Section 5 (1) of the Act, KRA is an agency of the Government for the collection and receipt of all revenue. For the performance of its function under Subsection (1), the Authority is mandated under Section 5(2) of the Act to administer and enforce all provisions of the written laws as set out in Parts I and II of the First Schedule to the KRA Act to assess, collect, and account for all revenues under those laws. 3. The dispute arose from additional Income Tax, Value Added Tax (VAT) and Pay As You Earn (PAYE) assessments issued on the Appellant for the periods 2019 - 2023. 4. The Respondent issued a notice to issue additional assessments dated 4th October 2024 and subsequently issued additional assessments dated 20th November 2024. 5. The Appellant filed a request dated 17th January 2025 to lodge a notice of objection out of time which was accepted. 6. The Respondent issued its Objection decision on 14th March 2025. 7. Aggrieved by the Objection decision, the Appellant filed a Notice of Appeal dated and filed on 7th May 2025. # **THE APPEAL** 1. The Appellant filed a Notice of Motion dated and filed on 21st May 2025 seeking to file the Appeal out of time. The motion was allowed by consent by both parties on 19th June 2025. However, the Appellant did not file a Memorandum of Appeal. # **APPELLANT’S CASE** 1. The Appellant did not file a Statement of Facts. # **RESPONDENT’S CASE** 1. The Respondent filed its Statement of Facts dated 20th April 2026 on 28th April 2026 and Written Submissions dated and filed on 27th March 2026. The Statement of Facts was filed after the hearing date of 31st March 2026 and therefore the Tribunal did not consider it. # **ISSUE FOR DETERMINATION** 1. The Tribunal has considered the record of proceedings and considers the issue for determination as follows: **Whether there is a valid Appeal on record****.** # **ANALYSIS AND FINDINGS** 1. Having identified the issue for determination, the Tribunal proceeds to analyse the same as hereunder. 2. As a preliminary matter, the Tribunal notes that the Appellant filed a Notice of Motion of dated and filed on 21st May 2025 seeking leave to file Appeal out of time. The motion was allowed by consent by both parties on 19th June 2025. However, the Tribunal observes that the grant of leave to appeal out of time does not, by itself, cure all procedural deficiencies in the constitution of an appeal. 3. Upon scrutiny of the record, the Tribunal notes that the Appellant did not file Memorandum of Appeal and Statement of Facts. 4. The Tribunal further notes that the Respondent filed its statement of facts on 28th April 2026 way after the hearing date of the appeal on 31st March 2026. 5. At the outset, the Tribunal observes a critical procedural deficiency; the Appellant failed to file a memorandum of appeal and a statement of facts, which are mandatory foundational documents in proceedings before the Tribunal. 6. The procedure governing appeals to this Tribunal is prescribed under Section 13 of the Tax Appeals Tribunal (TAT) Act. Section 13(1)(b) requires an Appellant to file a notice of appeal within thirty (30) days of receipt of the Commissioner's decision. In the present case, the Respondent’s decision was received on 14th March 2025, and the Appellant moved the Tribunal seeking leave to file the Appeal out of time pursuant to Section 13(3) of the tax Appeals Tribunal Act. 7. Section 13(3) of the TAT Act provides as follows: *“13(3) The Tribunal may, upon application in writing or through electronic means, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).”* 1. On 19th June 2025, the leave to file the appeal out of time was granted by consent of both Parties. 2. However, compliance with the timeline for filing the Notice of Appeal is only the first step in constituting a valid appeal. Section 13(2) of the TAT Act further requires that within **fourteen (14) days** from the date of filing the Notice of Appeal, an Appellant must submit to the Tribunal sufficient copies of the following documents: *“13. …* *(2) The appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal, of—* *(a) a memorandum of appeal;* *(b) statements of facts; and* *(c) the appealable decision; and* *(d) such other documents as may be necessary to enable the Tribunal to make a decision on the appeal.”* 1. The requirements under Section 13(2) are not merely administrative formalities, they are the substantive requirements of a valid appeal. Chief among these is the memorandum of appeal, whose contents are expressly prescribed by Rule 4 of the Tax Appeals Tribunal (Procedure) Rules, 2015, which provides as follows: - *“4. Memorandum of appeal* *(1) A memorandum of appeal referred in rule 3(2) shall—* *(a) be signed by the appellant;* *(b) set out concisely under distinct heads, numbered consecutively, the grounds of appeal without argument or narrative:* *(c) contain an index of all documents in the appeal with number of pages at which they appear; and* *(d) be accompanied by a copy of the—* *(i) tax decision; and* *(ii) notice of appeal.* 1. The memorandum of appeal serves a fundamental purpose in the framework of proceedings: it defines the scope of the appeal by setting out the specific grounds upon which the Appellant challenges the Commissioner’s decision, and it anchors all other pleadings, including the statement of facts. Without a memorandum of appeal, the Tribunal is left without the essential document identifying what decision is challenged, on what grounds, and what relief is sought by an appellant. 2. The statement of facts, serves as the foundational narrative of the dispute. It provides the Tribunal with an impartial, chronological account of the events, transactions, and communications that led to the tax assessment, ensuring that the Tribunal understand the exact circumstances of the case before it. 3. The consequence of this deficiency is jurisdictional. The Tribunal is guided by the holding of Nyarangi JA in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR**, where the Court of Appeal stated: - *“… Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”* 1. This Tribunal’s jurisdiction to entertain and determine an appeal on its merits is contingent upon the appeal having been validly and properly constituted in accordance with the TAT Act and the TAT (Procedure) Rules, 2015. Where the Appellant has failed to comply with the mandatory requirement to file a memorandum of appeal, a document that goes to the very root of the appeal, the proceedings are not merely irregular, they are incompetent. 2. Drawing from the above, the Tribunal finds that, in the absence of a memorandum of appeal and statement of facts, there is no valid appeal before the Tribunal. The Tribunal consequently lacks the jurisdiction to proceed to determine this matter on its merits. # **FINAL DECISION** 1. The upshot of the above analysis is that the Tribunal finds that the Appeal is incompetent and accordingly proceeds to issue the following orders: 2. The Appeal be and is hereby struck out. 3. Each party to bear its own costs. 4. It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026.** **……………………………..….** **ROBERT M. MUTUMA** **CHAIRMAN** **……………………………… ……..….……..……………..** **JIMMY M MALLA GLORIA A. OGAGA MEMBER MEMBER** **………………………………** **DR. TIMOTHY B. VIKIRU MEMBER**