https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/239

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E300/2026 AGNES NYAWIRA KAMAU VS KENYA REVENUE AUTHORITY RULING **RULING** 1. The Applicants filed vide a Notice of Motion on 14 th March 2026 under certificate of urgency supported by affidavit sworn by **Agnes Nyawira Kamau**, being the Applicant seeking the following Orders: 1. That this Honourable Tribunal be pleased to grant leave to the Applicant to file an Appeal out of time against the Objection Decision dated 26th January 2024. 2. That the Appeal annexed to the Applicant's application be deemed as duly filed upon payment of the requisite filing fees. 3. That the costs of this application be in the cause. # Grounds for the Application 1. The application is based on the following grounds: 1. That the Commissioner issued an Objection Decision dated 26th January 2024 in respect of the Applicant's tax affairs. 2. That under Section 13(1) of the Tax Appeals Tribunal Act Cap 469A(TATA) an appeal ought to be lodged within thirty (30) days from the date of receipt of the objection decision. 3. That the Applicant was unable to file the appeal within the stipulated time due to circumstances beyond her control including court proceedings instituted to obtain injunctive relief against enforcement measures initiated by the Respondent. 4. The said court proceedings were not intended to determine the tax dispute, but were solely instituted to protect the Applicant's property from enforcement action. 5. That the Applicant has an arguable appeal with reasonable prospects of success. 6. That It is in the interests of justice that the Applicant be granted an opportunity to be heard on the merits of the dispute. 7. That the Respondent will not suffer prejudice if the extension sought is granted. 2. The Applicant filed written submissions dated 9 th April 2026. From the submissions, the Applicant appears to be saying that she sought orders vide Nairobi case no. HCCOMM/E212/2024 against the Respondent hence the delay. # Response to the Application 1. The Respondent filed a replying affidavit sworn by Paul Muhoro Kiriiri who describes himself as an Officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act Cap 469. The Respondent stated as follows: 1. That the Respondent opposes in totality all the prayers in the Notice of Motion dated 11th March 2026 and averred that despite being directed to file the Objection, the Applicant failed to do so making it impractical to respond to the Application. 2. That the Respondent averred it issued an objection decision on 26th January 2024 therefore, the Applicant ought to have appealed against the objection decision by 26th February 2024. * 1. That the Applicant failed to exercise her right to appeal to the Tax Appeals Tribunal within 30 days as stipulated under Section 52 of the Tax Procedures Act, 2015 and Sections 12 and 13 of the Tax Appeals Tribunal Act, Cap 469A. 2. That the Applicant filed the Application herein seeking leave to appeal against the objection decision two years three months after the objection decision was issued. 3. That the Applicant has failed to give a valid reason for the delay in lodging the intended Appeal. 4. That the Applicant has failed to explain the 2 years 3 months delay in filing the intended Appeal. 5. That the Respondent averred that the reason that the Applicant had to first lodge injunctive reliefs before moving this honourable court demonstrates that the applicant intentionally delayed in filing the Appeal. 6. That the Applicant has failed to satisfy the conditions to enlarge time to lodge an Appeal out of time as laid out under Section 13(4) of the Tax Appeals Tribunal Act, and Rule 10(2) and (3) of the Tax Appeals Tribunal (Procedure) Rules, 2015. 7. That the Applicant is guilty of undue delay and indolence and has failed to take personal responsibility of its own tax affairs and is only engaging in blame games. 8. That in the circumstances, the Respondent prays that this Honourable Tribunal dismiss the Applicant’s Application dated 11th March 2026 with costs to the Respondent. 1. The Respondent also filed written submissions dated 1st day of April, 2026 wherein it submitted that the Applicant failed to meet the criteria set out in Section 13(4) of the Tax Appeals Tribunal Act; that the Applicant failed to give sufficient reason for the delay; and that the agency notices issued are proper. 2. The Respondent cited the case of **Jomusons Investment Limited v Commissioner of Domestic Taxes [2020] eKLR** where it was held that:- *“The Tribunals guided by the criteria set in the case of Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission &* *7 Others (2014) eKLR where it was held that:-* *‘‘Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.”* 1. The Respondent also relied on the case of **Income Tax Appeal No. 31 of 2017 Commissioner of Domestic Taxes vs Mayfair Insurance Company Limited (2017) eKLR** where the court held that:- *“One of the reasons stated under the Rule is that the court may extend time where there is reasonable cause for the delay. Effectively, the court’s powers and discretion to extend time is unlimited. It is however not to be capriciously exercised. Time, in other words, is not to be extended as a matter of right. Each case is to be viewed sui generis and on its own circumstances and facts. The starting point is that the Applicant ought to advance sufficient and reasonable grounds for any delay on its part.”* 1. The Respondent submitted that the Appellant’s Notice of Motion lacks merit and the Applicant is not deserving of the audience of the Tribunal. The Respondent prays that the Appellant’s Notice of Motion dated 14th March 2026 be dismissed with costs. # Analysis and Findings 1. The jurisdiction to hear and determine applications of this nature is derived from Section 13(3) of the TATA which provides as follows: *The Tribunal may, upon application in writing, extend the time for filing the Notice of Appeal and for submitting the documents referred to in subSection (2).* 1. Section 13(4) of TATA provides for scenarios under which the Tribunal may allow an application for extension of time. The Section provides that: *An extension under subSection (3) may be granted owing to absence from Kenya, or sickness, or other reasonable cause that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period.* 1. Apart from the provisions of Section 13(4) of TATA, the Supreme Court set out principle to guide Courts when dealing with applications for extension of time. The Supreme Court in the case of **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR** set out the following principles: 1. *‘‘Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;* 2. *A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;* 3. *Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;* 4. *Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;* 5. *Whether there will be any prejudice suffered by the respondents if the extension is granted;* 6. *Whether the application has been brought without undue delay; and* 7. *Whether in certain cases, like election petitions, public interest should be a consideration for extending time."* 8. Prior to ***Nicholas Kiptoo Arap Korir Salat* case (Supra)**, there was guidance in case of ***Wasike v Swala* [1984] KLR 591** wherein the Court provided the hierarchy of the factors to consider when considering an application for enablement of time. The Court stated as follows: *“An applicant must now show, in descending scale of importance, the following factors:-* 1. *That there is merit in his appeal.* 2. *That the extension of time to institute and/or file the appeal will not cause undue prejudice to the respondent; and* 3. *That the delay has not been inordinate.”* 4. Having laid out the foregoing basic provisions of the law and precedents the Tribunal analyzed the application as follows. # Whether there is a reasonable cause for the delay 1. In **County Executive of Kisumu v County Government of Kisumu & 8 others (Civil Application 3 of 2016) [2017] KESC 16 (KLR) (Civ) (12 April 2017) (Ruling),** the Supreme Court pointed out that a court has to find out whether there is a reasonable reason for the delay and that the delay should be explained to the satisfaction of the Court. 1. The Applicant argued that she filed a suit against the Respondent vide Nairobi case no. HCCOMM/E212/2024 and therefore, she could not institute another suit before this Tribunal. From our understanding, the Applicant must have approached the wrong forum instead of filing an appeal before this Tribunal. 1. The applicant argued that she is a lay person. The Tribunal notes that ignorance of the law is not a defence. Further the Tribunal notes that under Section 13(4) of the TATA an application for leave to file an appeal out time may be granted where the Applicant demonstrates existence of any ‘*other reasonable cause.’’* It is the Tribunal’s understanding that the Applicant had approached a wrong forum to address her aggrievances against the Respondent, the cause of the delay is reasonable. # Whether the delay is inordinate 1. The Applicant seeking leave to appeal out of time has an obligation to demonstrate that the delay was not inordinate. We wish to point out that tax laws in Kenya do not prescribe the number of days that constitute inordinate delay. Similarly, in the case of **Andrew Kiplagat Chemaringo v Paul** **Kipkorir Kibet [2018] eKLR** the Court held that: *“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”* 1. The Tribunal has already pointed out above that the Applicant must have approached a wrong forum in attempt to seek remedies against the Respondent thereby delaying to file the appeal. Taking into account the totality of the explanations, the Applicant has explained the delay to the satisfaction of the Tribunal. # Whether the Appeal is arguable 1. The Applicant has the burden to prove that the Appeal is arguable. The Applicant has to demonstrated that the appeal is not a frivolous or hopeless one. In the case of **Stanley Kangethe Kinyanjui v Tony Ketter & 5 others** **[2013] KECA 378 (KLR)** the Court of Appeal held that an arguable appeal is one that raises a ‘‘sufficient if a single bonafide arguable ground of appeal…’’ 1. The Applicant claimed that there was double taxation for the year 2017 amounting to Kshs 13,491,495. As to whether this is true or not is a matter of fact and evidence which the Applicant will have to adduce. In our view, this is an issue that calls for the Respondent to respond. For this reason, we are of the view that the intended appeal is not frivolous. # Whether the Respondent will be prejudiced if time is enlarged 1. It is well settled that it is important to consider whether the Respondent may suffer prejudice if the Applicant is allowed to file an appeal out of time. The Supreme Court in **Nicholas Kiptoo Arap Korir Salat case** guided as follows: *‘‘…the court will, in the ordinary way and in the absence of special circumstances, grant an extension of time. Unless the delay has caused irreparable prejudice to the other party, justice will usually favour the action proceeding to a full trial on the merits.’’* 1. It is the Tribunal’s considered view that the Respondent will recover the taxes together with interests should the appeal fail. Therefore, the Respondent will not be prejudiced. Consequently, the Tribunal is inclined towards exercising its discretion in favour of the Applicant. # DISPOSITION 1. In the circumstances, the Tribunal proceeds to make the following orders: 2. The Notice of motion dated 14 th March 2026 be and is hereby allowed; 3. The Applicant is hereby granted leave to file Appeal out of time; 4. The Applicant is hereby directed to file and serve its Notice of Appeal, Memorandum of appeal, and Statement of facts within fourteen (14) days of this ruling. 1. The Respondent to file and serve its statement of facts within the statutory timelines from the date of service of the Applicant’s pleadings; and 1. No orders as to costs. 2. It is so ordered. **DATED** and **DELIVERED** at **NAIROBI** this 19TH **day of** MAY **2026** SIGNED BY/FOR: HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU **★ TH E JUDICIAR Y O F KENY A ★** **HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-05-19 15:37:33