[2022] KEHC 16172 (KLR)

Andrew Mukite Musangip/s Mukite Musangi & Co. Advocates v Commissioner of Domestic Taxes (Income Tax Appeal E163 of 2021) [2022] KEHC 16172 (KLR) (Commercial and Tax) (9 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16172 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Income Tax Appeal E163 of 2021

A Mabeya, J

December 9, 2022

Between

Andrew Mukite Musangip/s Mukite Musangi & Co. Advocates

Appellant

and

Commissioner of Domestic Taxes

Respondent

(Being an appeal from the Tax appeal tribunal no 299 of 2018 dated and delivered on 3rd September 2021)

Judgment

1. The respondent assessed the appellant’s records for the year 2015 and gave an assessment of the taxes due. The appellant objected to the same on July 4, 2018 to which the respondent gave his objection decision on August 30, 2018.

2. The appellant preferred an appeal to the Tax Appeals Tribunal “the tribunal”). The respondent raised a preliminary objection on the grounds that the notice of appeal had been filed out of time. In its decision dated September 3, 2021, the tribunal upheld the preliminary objection and struck out the appeal.

3. Dissatisfied with that decision, the appellant lodged this appeal by a memorandum of appeal dated October 5, 2021. It raised 5 grounds of appeal which can be collapsed to one ground as to whether the tribunal erred to finding merit in the preliminary objection.

4. The respondent did file a response to the appeal and the appeal was canvassed by written submissions.

5. The appellant submitted that after receiving the objection decision from the respondent, he lodged his notice of appeal to the KRA Domestic Taxes department in Nakuru instead of the tax tribunal. That it skipped a step in the process for filing the appeal however the inadvertence was explainable. That it was misled on the forum of filing the appeal which was laid out in the objection decision. It was submitted that the respondent would not suffer any prejudice if the appeal was allowed to proceed.

6. The respondent submitted that the appellant had not adhered to the statutory timelines for filing an appeal before the tribunal. That the appellant being a firm of advocates, it ought to be well versed in the provisions of the law.

7. I have considered the record of appeal and the submissions. The main issue is whether the tribunal erred in upholding the preliminary objection and striking out the appeal.

8. The appellant admitted to have filed the notice of appeal out of the prescribed time. Section 52(1) of the Tax Procedures Act provides that a person who is dissatisfied with an appealable decision may appeal the decision to the tribunal in accordance with the provisions of the Tax Appeals Tribunal Act. Section 12 and 13 of the Tax Appeals Tribunal Act provide: -“12. A person who disputes the decision of the commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the commissioner, appeal to the tribunal.Provided that such person shall before appealing, pay a non-refundable fee of twenty thousand shillings.13. A notice of appeal to the tribunal shall-a)be in writing or through electronic meansb)be submitted to the tribunal within thirty days upon receipt of the decision of the commissioner.”

9. In its decision, the tribunal found that the statutory timelines which gave rise to substantive rights could not be extended by the tribunal on its own motion. That since the appellant had failed to apply for extension of time, the tribunal could not do so suo moto. For that reason, the appeal was dismissed.

10. Section 13(3) of the Tax Appeals Tribunal gives the tribunal the power to extend time for filing an appeal. It is not in dispute that the appellant lodged his appeal out of time. It is also not in dispute that he did not apply for extension of time.

11. The rules for procedure are put in place to ensure proper adjudication of disputes. The law having provided recourse to extension of time, the appellant chose not to follow that route and cannot now blame the tribunal for upholding the law. In my view the tribunal was well within its jurisdiction when it upheld the objection.

12. Accordingly, the appeal is without merit and the same is dismissed with costs.

It is so decreed.DATED andDELIVERED at Nairobi this 9th day of December, 2022. **A. MABEYA, FCIArbJUDGE