[2024] KETAT 1085 (KLR)

Agrigreen Consulting Corp Limited v Commissioner of Domestic Taxes (Tax Appeal E854 of 2023) [2024] KETAT 1085 (KLR) (19 July 2024) (Ruling)

Neutral citation: [2024] KETAT 1085 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E854 of 2023

E.N Wafula, Chair, E Ng'ang'a, M Makau, EN Njeru & AK Kiprotich, Members

July 19, 2024

Between

Agrigreen Consulting Corp Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Appellant vide a Notice of Motion dated the 24th day of April, 2024 and filed under a Certificate of urgency on the even date and which is supported by an Affidavit sworn by Edgar Isutsa, an Advocate for the Respondent, on the same date, sought for the following Orders:-a.Spentb.That the Honourable Tribunal grants leave for the Respondent to file its Supplementary list of documents pending hearing and determination of the Appeal.c.That the costs of this application be in the cause.

2. The application is premised on the following grounds:-a.That the list is vital in the hearing of the Appeal as the information includes email correspondence between the Respondent and the Appellant dated 6th October, 2023 requesting the Appellant to provide the Respondent with specific documents by the 9th October, 2023 together with the invalidation notice dated 9th October, 2023. b.That the list of documents also includes email correspondence between the Respondent and the Appellant dated the 16th October, 2023 requesting the Appellant to provide the Respondent with specific documents by the 18th October, 2023. c.That the Respondent is desirous of presenting the correct position in its defence of the matter vide the information contained in the Supplementary list of documents.d.That the Respondent holds the right to be heard and accorded a fair hearing pursuant to Article 50 of the Constitution of Kenya 2010 and this is ensured by granting the orders sought herein.e.That it is in the interest of justice that the Respondent be granted an opportunity to be heard on merits in this Appeal.f.That no prejudice will be suffered by the Appellant in the main Appeal if the orders sought herein are allowed as both parties have an equal and just opportunity to present the issues before the Tribunal.g.That this Honourable Tribunal has jurisdiction to grant the orders sought.

3. The Respondent upon being served with the application filed Grounds of Opposition dated the 22nd May, 2024 and filed on the even date in which it raised the following grounds:-a.That the application as drawn and filed is fatally incompetent and is ruse to delay justice.b.That the Respondent has neither offered a comprehensive explanation for the delay in filing of the further list and bundle of documents, nor demonstrated that the documents were not in their custody and could not have reasonably obtained them before the filing of their response on the 20th December, 2023. c.That the Respondent intends to adduce additional evidence being email correspondences between itself and the Respondent and has based its failure to adduce the above documents on the fact that the documents were not in its custody at the time of filing.d.That the reason employed by the Respondent is fatally incompetent and shows a lack of diligence on its part as the emails are well within the reach of a sender and/or recipient and are accessible at the convenience of the sender and/or recipient of the email.e.That the Respondent was able to easily obtain the email correspondence at any time based on the convenience of technology.f.That the intended additional evidence is an afterthought and an attempt by the Respondent to patch up its case.g.That the application had been made 4 months after filing of the Statement of Facts on the 20th December, 2023. h.That the application was filed after unwarranted and disproportionate delay as the Tax Appeals Tribunal Act dictates that matters before shall be heard and determined within ninety days of filing.i.That prejudice will be occasioned on the Appellant should the application be granted.j.That there should be an end to litigation and the Tribunal should be wary of allowing parties to adduce additional evidence at any time with the aim of improving their case.k.That the Respondent should bear the consequences of its inaction and negligence and should therefore not be allowed to waste the Tribunal’s time and scarce resources.l.That the application is frivolous, vexatious and an abuse of the process of this Honourable Tribunal and should be dismissed with costs.

Analysis and Findings 4. The parties in compliance with the directions of the Tribunal on having the application canvassed by way of written submissions separately filed written submissions that were adopted by the Tribunal on the 30th May, 2023.

5. The Tribunal’s power in determining applications of this nature is anchored in Section 15 (4) of the Tax Appeals Tribunal Act and under Rule 10 of the Tax Appeals Tribunal (Procedure) Rules 2015.

6. The Respondent contended that it sought leave of the Tribunal to file additional documents with a view of articulating on the request for documents in support of the notice of objection prior to the issuance of its decision on the objection and that the documents are critical to its defense of the appeal.

7. The Respondent in invigorating it arguments placed reliance on the provisions of Article 50 of the Constitution of Kenya, which seeks to ensure that each party is afforded an opportunity to present or defend their cases fairly.

8. Article 50 (1) of the Constitution of Kenya 2010, provides that;“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”

9. The Appellant in its response, challenged the lapse of time between the filing of the Respondent’s Statement of Facts and the application seeking for the production of the additional documents.

10. The Appellant alleges that it will suffer prejudice but nevertheless did not demonstrate how it would be placed in a position of prejudice if the orders sought were granted.

11. The Tribunal observes that the Appeal was yet to be heard, neither party had prosecuted its case and that the application herein was made before the date scheduled for the hearing of the Appeal.

12. It is the Respondent’s argument that the additional documents shall assist the Tribunal to have a clear and full picture of issues while dispensing justice.

13. The Tribunal having perused the additional documents notes that the same are copies of extract of an email as between the Respondent and the Appellant herein.

14. In the Tribunal’s view, the additional documents that the Respondent seeks to include and rely on at the hearing of the Appeal, do not appear to be new documents to the Appellant, the Appellant will not therefore be ambushed with fresh documents that it has not already been furnished with.

15. It is the Tribunal’s view that there is no provision in law that bars a party from presenting further evidence obtained pursuant to the institution on the case, it is generally an acceptable practice in law that with sufficiency of reasonable cause to the Tribunal, a party may be allowed to file additional or supplementary documents.

16. Further, the Tribunal notes that it would be reasonable for some evidence intended to be relied upon in any proceedings to come to the attention or knowledge of such party after the institution of the suit or Appeal.

17. The Tribunal is persuaded that the additional documents shall aid the Tribunal to have a clear picture of the issues and will also afford the parties a fair trial as well as shade more light to the issues in controversy.

18. There is no prejudice that may manifest upon the Appellant’s case or grant the Respondent undue advantage, if the Orders sought are granted in the Tribunal’s view the Appellant shall have an opportunity to review and respond to the said documents without any undue advantage being extended to any party to these proceedings.

19. The Tribunal finds that the grounds advanced by the Respondent for the delay in filing the documents are reasonable.

Disposition 20. In view of the foregoing analysis, the Tribunal finds that the application is merited and accordingly proceeds to make the following Orders: -a.The Respondent be and is hereby granted leave to file and serve a Supplementary list of documents limited to the documents annexed and marked as ‘EA1-1, 2 and 3’ to the Affidavit in support of the application.b.The Respondent to file and serve the Supplementary List of documents within Three (3) clear days of the date of delivery of this Ruling.c.The Appellant be and is hereby granted a corresponding leave and is at liberty to file a Supplementary list of documents in response to the Respondent’s Supplementary list of documents within Seven (7) days of the date of being served by the Respondent.d.That the matter to be mentioned on the 8th July, 2024 for directions on the hearing of the main Appeal.e.No orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 19THDAY OF JULY, 2024. ERIC NYONGESA WAFULA - CHAIRMANEUNICE N. NG’ANG’A - MEMBERMUTISO MAKAU - MEMBERELISHAH N. NJERU - MEMBERABRAHAM K. KIPROTICH - MEMBER