https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/315

REPUBLIC OF KENYA IN THE TAX APPEALS TRIBUNAL AT NAIROBI TAX APPEAL NO. E797 OF 2026 MSALLAM SAID ALI ................................................................. APPELLANT/APPLICANT VS COMMISSIONER OF DOMESTIC TAXES ................................................. RESPONDENT THE APPLICATION RULING 1. The Applicant vide a Notice of Motion dated 25th June, 2026 and supported by the Supporting Affidavit of Msallam Said Ali sought the following orders: - a. Spent. b. THAT the Honorable Tribunal be pleased to extend the time allowed for the Applicant to file a Notice of Appeal, a Memorandum of Appeal, a Statement of Facts, and all other supporting documents. c. THAT the Notice of Appeal, Memorandum of Appeal, Statement of Facts both dated 17th June, 2026, filed herewith, be deemed as properly filed and served. d. THAT costs of this Application be provided for. 2. The application was premised on the following grounds: Ruling TAT No. E797 of 2026 – Msallam Said Ali -vs- Commissioner of Domestic Taxes Page 1 of 5 a. That the Appellant was unwell and thus unable to file the appeal in time. b. That it is in the interest of justice and pursuant to Article 159 of the Constitution, that the Tribunal ignore procedural technicalities and determine this dispute on the merits. c. That the Tribunal has the power to extend the time for filing the pleadings as granted by Section 13 (3) and (4) of the Tax Appeals Tribunal Act 2013 and Rule 10 of the Tax Appeals Tribunal (Procedure) Rules 2015. d. That it is only fair and in the interests of justice that the orders sought herein be granted. 3. The Respondent did not file a response to this application. ANALYSIS AND FINDINGS 4. The Application is seeking to extend time to file the Applicant’s intended Appeal out of time on the grounds that its director has been indisposed and was thus unable to attend to his duties in a timely manner. The Applicant’s intended Appeal is against the Respondent’s Objection Decision dated 31st July 2025. 5. The power of the Tribunal to enlarge the time for filing of appeals and additional documents to the Tribunal by Appellants/Applicants is donated by Section 13 of the Tax Appeals Act in the following terms: Section 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). Ruling TAT No. E797 of 2026 – Msallam Said Ali -vs- Commissioner of Domestic Taxes Page 2 of 5 (4) 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. (5) An appellant shall serve a copy of the appeal on the Commissioner within two days after giving notice of appeal to the Tribunal. (6) The appellant shall, unless the Tribunal orders otherwise, be limited to the grounds stated in the appeal or documents to which the decision relates. 6. It is now well settled that the power to extend time for filing an appeal out of time is discretionary and ought to be exercised with abundant caution. In Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997 the court outlined factors to consider in extending time as follows: - “It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this court takes into account in deciding whether to grant an extension of time are, first the length of the delay, secondly the reasons for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly the degree of prejudice to the respondent if the application is granted.” 7. In the circumstances of the instant application, the Respondent issued the Objection Decision on 12th July 2024, whilst the Applicant filed its Ruling TAT No. E797 of 2026 – Msallam Said Ali -vs- Commissioner of Domestic Taxes Page 3 of 5 application for an extension of time on 5th July 2025. The appellant was thus late by about 11 months. 8. Section 13 (4) of the Tax Appeals Tribunal Act outlines specific grounds or circumstances under which the Tribunal may extend time to file a late appeal. The Applicant has grounded its application on sickness. It has not attached any evidence to support the grounds of illness. It was incumbent on the Appellant to discharge its burden of proof by providing relevant documents to support its allegation of sickness. 9. Moreover, the delay of 11 months needed to be justified and explained sufficiently. The sickness duration during that period ought to have been supported by medical documents to be reasonably justified and explained. 10. Flowing from the above analysis, the Tribunal has come to the conclusion that the Applicant has not met the threshold for an extension of time within the parameters of Section 13(4) of the Tax Appeals Tribunal Act (Cap 469A). ORDERS 11. The upshot of the foregoing is that the instant Application lacks merit and the Tribunal shall proceed to make the following orders: - a) The Application be and is hereby dismissed. b) Each party to bear its costs. 12. It is so ordered. DATED and DELIVERED at NAIROBI this ………7th...……. Day of …… August..…… 2026 Ruling TAT No. E797 of 2026 – Msallam Said Ali -vs- Commissioner of Domestic Taxes Page 4 of 5 ..........................………………………. DR. RODNEY ODHIAMBO OLUOCH CHAIRPERSON .…..….……………………. ..…. ………………………. CYNTHIA B. MAYAKA MEMBER DR. ERICK KOMOLO MEMBER ……………………………… ABDULLAHI DIRIYE MEMBER Ruling TAT No. E797 of 2026 – Msallam Said Ali -vs- Commissioner of Domestic Taxes Page 5 of 5