https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/215

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E929/2025 ARISH ENTERPRISE LTD VS KENYA REVENUE AUTHORITY JUDGMENT **BACKGROUND** 1. The Appellant, is a limited liability company whose principal business activity is general supplies. 2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws. Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. 3. The Respondent vide letter dated 15 th November 2024, notified the Appellant of the intention to carry out credit validation on the tax affairs of the Appellant for the period November 2023 to September 2024. During the verification process, the Respondent noted that the Appellant had claimed input VAT and purchases in its VAT3 amounting to Kshs 18,132,264 without corresponding sales and output VAT. Further, the Respondent noted that the Appellant did not have any known place of business nor known source of the alleged delivered goods. 1. Consequently, the Respondent disallowed purchases and input tax claimed from Little Baduz Distributor amounting to Kshs 159,308,276 and raised VAT demand amounting to principal tax of Kshs 25,489,324 vide assessment dated 23rd April 2025. 2. The Appellant objected to the said assessment via notice of objection dated 23rd May 2025. The Respondent reviewed the objection and issued an objection decision dated 17th July 2025 confirming the assessment and demanded the Appellant to pay a total of Kshs 25,489.324.14. 3. Dissatisfied with the decision, the Appellant filed a notice of appeal dated 26th August 2025 and filed on 27th August 2025. # THE APPEAL 1. The appeal is founded on the memorandum of appeal dated 26 th August 2025 and filed on 27th August 2025 wherein the Appellant raised the following grounds of appeal: 1. That the Commissioner erred in law in issuing additional assessment of Ksh.25,489,324.14.00 after being provided with documents requested and not giving a review feedback to the Appellant which contravenes the provisions of the Tax Procedures Act Cap 469B(TPA). 2. That the Commissioner erred in law by declining the objection without due regard to the available records and documents. 3. The Commissioner failed take note of the principle of fair administrative action which requires that reasons must be given for every administrative action before the issuance of an Assessment which is likely to negatively affect the Appellant as a person as per section 4 of FAAA. 4. The respondent acted in complete disregard to the principles of procedural justice by not serving the appellant with the notice of assessments. 5. The Commissioner erred in disallowing the tax deductibles or claimable as provided for in the law without any justifications to the appellant. # THE APPELLANT’S CASE 1. The Appellant lodged statement of facts dated on 27th August 2025. The Appellant also filed written submissions dated 30th March 2026 and filed on 31st March 2026. 2. The Appellant stated that the Commissioner issued a notice to carry out VAT credit validation on 15th November 2025 for the period of June 2024 to September 2024. On 3rd December 2024 the Commissioner deactivated the Appellant’s PlN. 3. According to the Appellant, the Commissioner did not serve the Appellant with notice of PIN deactivation. 4. It stated that the Commissioner issued credit validation findings on 21st March 2025 after issuing additional assessments on Itax portal. 5. The Appellant stated that the Commissioner issued a demand Notice on 23rd April 2025. The Appellant objected to the assessments on 23rd May 2025 through Itax portal which was validly lodged vide reference no KRA 20258365444. The Commissioner then issued objection decision on 17th July 2025 upholding the additional assessments. The Appellant then filed this Appeal. 6. The Appellant through written submissions stated the Respondent erred in the decision to invalidate the Appellant’s objection after all required documents were supplied, and that the Appellant discharged the Burden of proof demonstrating a valid purchase. 7. It submitted that the Respondent erred in its decision to invalidate objection submitted in strict adherence to the taxation laws of Kenya and in compliance with section 51(3) of the TPA. It relied on section 51(4) of the TPA to submit that where the objection is not validly lodged, the Respondent has a duty to notify the taxpayer of that fact but the Respondent failed to do so. 8. The Appellant submitted that the Respondent did not consider the documents that it provided in support of the objection. It therefore, submitted that the Respondent breached Article 47 of the Constitution of Kenya. # It cited the case of Republic v National Land Commission & 2 Other Ex-parte Archdiocese of Nairobi Kenya Registered Trustees (St joseph Mukasa Catholic Church Kahawa West (2018) eKLR to support the position that the Respondent has a duty to ensure that it complies with the tenets of fair administrative action. 1. The Appellant cited the case of **Republic v Kenya Revenue Authority Exparte Yaya Towers Limited [2008] eKLR**, where it was observed that, "every public body owes its powers to Act donating be same and it is also subject to the constitution. If a public body acts outside or exceeds the powers donated to it, it will be acting without jurisdiction." 1. It relied on the case of **Mungangia Tea Factory Company Limited & Others Vs Commissioner of Domestic Taxes [2020] eKLR** where the Court observed that the collection of taxes must not appear to be punitive, arbitrary, abrupt, discriminatory, or unfair because if the taxpayer's closes shop because of the perceived irregularity, arbitrariness or frustrations, there will be no tax to collect. 1. The Appellant also cited the case of **Westminster Corporation Vs London and Northwestern Rail Co. [1905] AC 426** to argue that public bodies should not abuse powers. It also relied on the case of **Ernie Gampbell & Co(K) Ltd v commissioner of Domestic taxes** to support the position that the Respondent has to prove the allegation of fraud and that the burden of prove a fraudulent transaction is on the Respondent. 1. The Appellant also submitted that the assessment violates express provisions of the Income Tax Act, and Sections 51(4) and 51(11) of the TPA. # Appellant’s prayers 1. Based on the foregoing, the Appellant prayed for the following reliefs: 2. The matter be referred to ADR for further deliberations since the Appellant has all the documents in support of the transactions. 3. The Tribunal be pleased to stay the implementation of the decision by the Respondent pending the hearing and determination of the Appeal. 1. That the appeal be allowed. # THE RESPONDENT’S CASE 1. In opposition to the Appeal, the Respondent filed its Statement of facts dated 16th December 2025 and filed on 23rd December 2025. It also filed written submissions dated 26th March 2026 and filed on 27th March 2026 2. The Respondent case was that it conducted credit verification on the affairs of the Appellant. During the credit verification exercise, the Respondent established that the Appellant had claimed purchases amounting to Kshs 159,308,276 with input value of Kshs 25,489,324 with no corresponding declared sales. 3. The Respondent averred that in a normal business, the purchases usually have corresponding sales. Further verification established that the Appellant did not have a physical office and only procures and supplies when there is an order. The Appellant was then tasked to provide information on the orders received and how it procured goods and the recipients of the said goods which information the Appellant failed to provide. 4. According to the Respondent, the Appellant alleged that it received goods on credit from Little Baduz but did not provide information such as loan/credit agreements in support of the credit assertion. The Respondent pointed out that the Appellant has attached invoices and delivery notes from little Baduz but to date the Appellant has not attached or provided evidence of payment of the said goods amounting to Kshs 159, 308,276. 5. Further, the Respondent pointed out that the contract annexed between the Appellant and Little Baduz is not signed by any of the parties hence does not confer any right or obligation and has no legal effect as it is merely a paper which cannot be relied on as evidence. 6. It pointed out that during the objection review stage, the Appellant was tasked to explain why it did not declare the sales in the VAT3 returns and its response was that it had not made sales yet. The Respondent noted that the same has not been declared. 7. The Respondent opined that in support of the assertion that it had not made the sales yet, the Appellant could have provided records such as closing stock inventory, stock movement which the Appellant failed to provide to date. 1. Whereas the Appellant alleged during objection stage that two main clients are Shakujun Enterprises and Juneja Investment, a further review of the Companies involved in the Appellant's transaction established that Shakujun Enterprises is related to Little Baduz which begs the question as to why the Appellant would purchase goods from Little Baduz to supply Shakujun on credit yet the two are related entities. 2. The Respondent averred that going by the chronology of events above, the Appellant's transaction appear to be a scheme to either avoid paying taxes or claim non-existing input VAT. 3. It asserted that the law governing the right to deduct input VAT is contained in Section 17 (5) of the Value Added Tax Act Cap 476(VATA). It maintained that the said section of the law provides that if a trader has incurred input tax, which is properly allowable, the taxpayer is entitled to set it off against his output tax liability or to receive a refund if the input tax credit due to him exceeds that liability. 4. The Respondent stated that the Appellant sought to abuse the VAT tax regime in the hope of illegally claiming non-existence input VAT. 5. According to the Respondent, under the VAT tax regime, businesses pay tax on the value add to the goods and serviced purchase from other businesses. It noted that VAT liability is typically calculated using what is known as the credit invoice method. Under this method, businesses apply the VAT rate to their sales but claim a credit for VAT paid on purchases of inputs from other businesses shown on purchase invoices. The difference between the VAT collected on sales and the credit for VAT paid on input purchases is remitted to the government. 6. The Respondent maintained that the Appellant has not demonstrated the value they added to the goods for them to be eligible to claim input VAT. It stated that the abuse or illegality can stem from either underpayment of taxes owed on sales, or overstating taxes paid on purchases, that is, refund illegality. 7. According to the Respondent, VATS are vulnerable to refund illegality because businesses with taxable sales less than taxable purchases are entitled to refunds. 8. The Respondent maintained that the Appellant failed to demonstrate how the purchased goods were ordered, recorded, and sold. 9. It pointed out that as part of the illegal VAT refund scheme, the payments are recorded in the books of the Appellant as cash whilst no actual cash pay- out was made to conceal trail notwithstanding the substantial amounts. 10. The Respondent pleaded that the Appellant had also used the same invoices to account for expenses in the financial statements thus reducing its income tax liability as well. The Respondent argued that the bogus invoices are meant to illegally reduce the VAT payments registered taxpayers are supposed to comply with. It added that the fictitious invoices are invoices generated to depict a business transaction whereas there is no actual supply/movement of goods and services and that there is no commercial transaction or value. 11. The Respondent averred that the Appellant is under obligation under the law and particularly section 59 of the TPA and section 43 of the VATA to provide documents required for the Respondent to assess the correct amount of taxes. However, where a Taxpayer fails to provide information to assist the Commissioner in ascertaining the correct amount of taxes payable, the law permits the Commissioner under section 29 and 30 of the TPA to exercise its best judgement in coming up with the assessment. 12. The Respondent also pleaded that section 56(1) of the TPA places the burden on the Appellant to demonstrate that the assessment was inaccurate and excessive which burden the Appellant failed to discharge. 13. The Respondent therefore, maintained that the tax assessment issued was properly founded in fact and law, and that the objection decision was fair, reasonable, and made in accordance with statutory provisions. 14. The Respondent submitted that it was justified under Section 17 of the VATA in disallowing the input VAT claimed by the Appellant and raising the subsequent VAT assessment. It also submitted that the Appellant failed to discharge the burden of proof that it was entitled to the claimed purchases. 15. Respondent relied on the case of **Osho Drapers Limited v Commissioner of Domestic Taxes** where this Tribunal held as follows: *"For one to claim input tax, there must be a purchase of a taxable supply. It is not enough to have documentation listed in Section 17 of the VAT Act. The documentation must be supported by an underlying transaction and the taxpayer must furnish proof that there was an* *actual purchase."* # It relied on the case of China Communications Construction Company Limited v The Commissioner of Intelligence, Strategic Operations, Investigations & Enforcement TAT E267 of 2023 to support the position that the bogus invoices that the Taxpayer sought to rely on were meant to illegally reduce the VAT payments registered taxpayers are supposed to comply with. 1. The Respondent also relied on the following case laws: 2. Republic v Commissioner of Domestic Taxes ex parte Mayfair Insurance Company Limited [2019] eKLR; 3. Commissioner of Domestic Taxes v Barclays Bank of Kenya Limited [2o18] eKLR; 4. Robert K. Ayisi v Kenya Revenue Authority & another [2018] eKLR*;* 5. Cape Brandy Syndicate -vs- I.R.C1 KB 64, 71; 6. Republic v Kenya Revenue Authority ex parte Shake Distributors Limited [2012] eKLR; 7. CMC Aviation Ltd v Cruisair Ltd (No.1) [1978] KLR 103; 8. Kenya Revenue Authority v Man Diesel & Turbo SE, Kenya Branch [2021] eKLR; 9. Republic v Kenya Revenue Authority ex parte Fintel Limited [2019] eKLR; 10. Eldo-Rosta Construction Limited v Commissioner of Domestic Taxes (Tax Appeal E459 of 2023) [2024] KETAT 1277 (KLR); and 11. Seven Seas Technologies Limited v Commissioner of Domestic Taxes (Tax Appeal No. 8 of 2017) [2019] eKLR. # Respondent prayers 1. The Respondent prayed that: 2. The appeal be dismissed with costs; and 3. The tax assessment as confirmed by the objection decision be upheld. # ISSUE FOR DETERMINATION 1. The Tribunal having considered the Memorandum of Appeal, the parties’ Statements of Facts, and submissions, puts forth the following issue for determination: # Whether the Respondent erred in confirming VAT assessment ANALYSIS AND FINDINGS 1. Having identified the issue for determination, the Tribunal proceeds to analyse the same as hereunder; # Whether the Respondent erred in confirming VAT assessment 1. The Tribunal wishes to point out from the outset that the Appellant’s statement of facts does not give material facts in support of the Appeal. The Appellant merely stated that the Respondent issued an assessment, the Appellant objected to the assessment then the Respondent issued an Objection decision. This is contrary to Rule 5 of the Tax Appeals Tribunals (Procedure) Rules, 2015 which stipulate that: ## *5. Statement of facts of appellant* 1. *Statement of fact signed by the appellant* ***shall set out precisely all the facts on which the appeal is based and shall refer specifically to documentary evidence*** *or other evidence which it is proposed to adduce at the hearing of the appeal.* 2. *The documentary evidence referred to in paragraph (1) shall be annexed to the statement of fact* 3. The Tribunal examined the available statement of facts in relation to the availed documents, in relation to the Appellant’s case and in relation to the law. The Appellant in the memorandum of appeal argued that the Respondent erred in disallowing the tax deductibles or claimable as provided for in the law without any justifications to the Appellant. The Appellant was simply saying that the it was entitled to input tax. However, the statement of facts does not contain facts in support of this issue. 4. Section 17 (1) of the VATA provides for deduction of input tax on a taxable supply to, or importation made by, a registered person. It provides thus: ## *17. Credit for input tax against output tax* *(1) Subject to the provisions of this Act and the regulations, input tax on a taxable supply to, or importation made by, a registered person may, at the end of the tax period in which the supply or importation occurred, be deducted by the registered person in a return for the period, subject to the exceptions provided under this section, from the tax payable by the person on supplies by him in that tax period, but only to the extent that the supply or importation was acquired to make taxable supplies.* 1. Section 17(3) of the VATA provides for some of the documents that the taxpayer has to keep. It provides that: 2. *The documentation for the purposes of subsection (2) shall be—* 1. *an original tax invoice issued for the supply or a certified copy;* 2. *a customs entry duly certified by the proper officer and a receipt for the payment of tax;* 3. *a customs receipt and a certificate signed by the proper officer stating the amount of tax paid, in the case of goods purchased from a customs auction; and* 4. *a credit note in the case of input tax deducted under section 16(2);* 5. *a debit note in the case of input tax deducted under section 16(5); or* 6. *in the case of a participant in the Open Tender System for the importation of petroleum products that have been cleared through a non-bonded facility, the custom entry showing the name and PIN of the winner of the tender and the name of the other oil marketing company participating in the tender:* 3. Section 43 of the VATA also requires the taxpayer to keep records to facilitate determination of tax liability. In particular section 43(1), (2) and (3) provides as follows: ## *43. Keeping of records* 1. *A person shall, for the purposes of this Act, keep in the course of his* *business, a full and true written record, whether in electronic form or otherwise, in English or Kiswahili of every transaction he makes and the record shall be kept for a period of five years from the date of the last entry made therein.* 1. *The records to be kept under subsection (1) shall include—* 2. *copies of all tax invoices and simplified tax invoices issued in serial number order;* 3. *copies of all credit and debit notes issued, in chronological order;* 4. *purchase invoices, copies of customs entries, receipts for the payment of customs duty or tax, and credit and debit notes received, to be filed chronologically either by date of receipt or under each supplier’s name;* 5. *details of the amounts of tax charged on each supply made or received and in relation to all services to which section 10 applies, sufficient written evidence to identify the supplier and the recipient, and to show the nature and quantity of services supplied, the time of supply, the place of supply, the consideration for the supply, and the extent to which the supply has been used by the recipient for a particular purpose;* 6. *tax account showing the totals of the output tax and the input tax in each period and a net total of the tax payable or the excess tax carried forward, as the case may be, at the end of each period;* 7. *copies of stock records kept periodically as the Commissioner may determine;* 8. *details of each supply of goods and services from the business premises, unless such details are available at the time of supply on invoices issued at, or before, that time; and* 9. *such other accounts or records as may be specified, in writing, by the Commissioner.* 10. *Every person required under subsection (1) to keep records shall, at all reasonable times, avail the records to an authorised officer for inspection and shall give the officer every facility necessary to inspect the records.* 11. The Appellant in support of its case filed the following documents: 12. Unexecuted and undated agreement between the Appellant and Little Baduz Distributors Ltd; 13. Unexecuted and undated agreement between the Appellant and Shakajun Enterprises Ltd; 14. Delivery note dated 24 th June 2024 together with corresponding tax invoice; 15. Delivery note dated 20th June 2024 together with corresponding tax invoice; 16. Delivery note dated 18th June 2024 together with corresponding tax invoice; 17. Delivery note dated 16th June 2024 together with corresponding tax invoice; 18. Delivery note dated 14th June 2024 together with corresponding tax invoice; 19. Delivery note dated 13th June 2024 together with corresponding tax invoice; 20. Delivery note dated 12th June 2024 together with corresponding tax invoice; 21. Delivery note dated 20th June 2024 together with corresponding tax invoice; 22. Demand notice dated 23rd April 2025; 23. Credit validation notice of findings dated 21st March 2025; 24. Notice to carry out VAT credit validation dated 15 th November 2024; and 25. Deactivation of PIN for CAT filing dated 3rd December 2024. 26. The Tribunal noted that the whereas the Appellant filed delivery notices together with corresponding tax invoices, the Appellant did not file any evidence to confirm that it incurred or paid for those purchases. 27. Further, this Tribunal in the case of **Osho Drappers Limited v Commissioner of Domestic Taxes [2020] KETAT 59 (KLR)** held as follows at paragraphs 57 and 58 of the judgment: 28. *The Tribunal therefore agrees with the Respondent that for one to claim input VAT, there must be a purchase of a taxable supply. It is not enough to have the documentation listed in Section 17 of the VAT Act. The documentation must be supported by an underlying transaction and the taxpayer must furnish proof that there was an actual purchase.* 29. *Section 30 of the Tax Appeals Tribunal Act places the burden of proof on the taxpayer to submit all the necessary documentation to support its case. The same position was held by the court in* ***Metcash Trading Limited v Commissioner for the South African Revenue Service and Another Case CCT 3/2000****, where it was held that:* *“But the burden of proving the Commissioner wrong then rests on the vendor under section 37. Because VAT is inherently a system of self- assessment based on a vendor’s own records, it is obvious that the incidence of this onus can have a decisive effect on the outcome of an objection or appeal. Unlike income tax, where assessments can elicit genuine differences of opinion about accounting practice, legal interpretations or the like, in the case of a VAT assessment there must invariably have been an adverse credibility finding by the Commissioner; and by like token such a finding would usually have entailed a rejection of the truth of the vendor’s records, returns and averments relating thereto. Consequently, the discharge of the onus is a most formidable hurdle facing a VAT vendor who is aggrieved by an assessment: unless the Commissioner’s precipitating credibility finding can be shown to be wrong, the consequential assessment must stand.”* 1. The Appellant in **Osho case(supra)** having been dissatisfied with the Tribunal’s decision, appealed the judgment to the High vide **Osho Drapers Limited v Commissioner of Domestic Taxes [2022] KEHC 196 (KLR)**, wherein the High while dismissing the appeal as follows at paragraph 17 of the judgement: *‘‘17. In this regard, it was for the appellant to prove that the respondent was wrong in its objection decision because, there had been a taxable supply to it. That is, that the appellant had made taxable purchases.’’* 1. The Tribunal noted that the Respondent argued that during the credit verification exercise, the Respondent established that the Appellant had claimed purchases amounting to Kshs 159,308,276 with input value of Kshs 25,489,324 with no corresponding declared sales. The Appellant in its statement of facts did not rebut the Respondent’s assertions. 2. The Respondent averred that in a normal business, the purchases usually have corresponding sales however, the Appellant did not demonstrate that it made sales. The Appellant’s statement of facts did not address this concern. 3. The Respondent’s case was that the Appellant was tasked to provide information on the orders received and how it procured goods and the recipients of the said goods but the Appellant failed to provide the information. The Respondent also pointed out that the Appellant alleged that it receives goods on credit from Little Baduz but did not provide information such as loan/credit agreements in support of the credit assertion. The Tribunal notes that the Appellant did not address these issues in its statement of facts. 4. The Respondent rejected the contract annexed between the Appellant and Little Baduz on the basis that it was not signed. The Tribunal found the contract wanting as it was not duly singed and therefore in admissible. 5. The Respondent also pointed out that during the objection review stage, the Appellant was tasked to explain why it did not declare the sales in the VAT3 returns and its response was that it had not made sales. The Respondent noted that same has not been declared to date. The Appellant statement of facts did not address this issue. 6. The above are some of the reasons that the Respondent believed that the Appellant was abusing or illegality using its PIN to avoid taxes. Again, the Appellant’s statement of facts was silent on this issue. 7. As pointed out above, the Appellant has a duty to demonstrate that the Respondent’s decision was incorrect. The Appellant failed to do so. 8. The Appellant in its written submissions submitted that the Respondent should have requested for the documents that it required within timelines specified under Section 51(4) of the TPA which provides that: 9. *Where the Commissioner has determined that a notice of objection lodged by a taxpayer has not been validly lodged, the Commissioner shall within a period of fourteen days notify the taxpayer in writing that the objection has not been validly lodged and request the taxpayer to submit the information specified in the notice within seven days after the date of the notice.* 10. The Tribunal’s view is that the responsibility of the taxpayer under Section 23, 51(3) of the TPA, and Section 17(3) and 43 of the VATA to keep and produce documents as and when needed. In this particular case, the Appellant has no right to invoke the provisions of Section 51(4) of the TPA because the Respondent in a notice to carry out VAT credit validation dated 15th November 2024 and subsequently in credit validation notice of findings dated 21st March 2025 requested the Appellant to provide documents including purchase orders, proof of payment, delivery notes. 1. The Tribunal notes that out of the requested for documents, the Appellant only filed delivery notes to support this appeal. It did not file the remining documents as requested. It is the Tribunal’s view that the Appellant should have tendered those documents when it filed notice of objection dated 23rd May 2025 in compliance with Section 51(3)(c) of the TPA. The Appellant failed to do so, the Appellant therefore cannot claim that it was unfairly treated administratively. 2. Section 51(8) of the TPA allows the Respondent to allow the objection in whole or in part, or disallow it. The finding to allow the objection in whole or in part, or disallow fully should depend on the quality of the documents that the taxpayer adduces. If the taxpayer adduces documents that cannot objectively substantiate the notice of objection, it should not expect the objection to be allowed fully. 3. With regard to deactivation of the Appellant’s PIN, the Tribunal notes that the Respondent issued a letter dated 3rd December 2024 wherein it notified the Appellant that its PIN had been deactivated as a result of inconsistencies detected in Appellant’s VAT returns for the period of October 2024. Pursuant to the demand notice dated 23rd April 2025, the assessment in issue concerned the returns for the periods November 2023 to September 2024. Therefore, the deactivation of the PIN is outside the scope of the assessment and therefore, cannot be canvased in this appeal. Consequently, the Tribunal does not have jurisdiction to entertain it. 4. The Tribunal also notes that the Appellant through its written submissions purported to raise an issue that the assessment infringed Section 51(11) of the TPA. Section 51(11) of the TPA provides that, *‘the Commissioner shall make the objection decision within sixty days from the date of receipt of a valid notice of objection failure to which the objection shall be deemed to be allowed.'* The Appellant did not raise this issue in its statement of facts therefore, it cannot raise a new fact through written submissions since doing so is against Section 56(3) of the TPA and Section 13(6) of the Tax Appeals Tribunal Act Cap 469A(TATA) and it amounts to raising new facts after close of pleadings and without leave from the Tribunal. It also amounts to trial by ambush which cannot be allowed. 1. In **Commissioner of Domestic Taxes v Ibangua Investments Co. Ltd (Tax Appeal E093 of 2023) [2023] KEHC 26013 (KLR)** the High Court pointed out that new facts cannot be introduced through written submissions. 2. The Appellant introduced a number of new issues that it did not raise through the statement of facts therefore, the Respondent could not respond to those issues. 3. Based on the foregoing, the Tribunal finds and hold that the Appellant failed to demonstrate that the Respondent erred in confirming VAT assessment. # FINAL DECISION 1. Under the circumstances, the Tribunal finds and holds that the Appeal lacks merit and consequently makes the following orders; - 1. The Appeal be and is hereby dismissed; 2. The Objection decision dated 17 th July 2025 be and are hereby upheld; and 3. Each party to bear its own cost. 4. It is so ordered. # DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026 SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. ROBERT MUGAMBI MUTUMA (CHAIRPERSON) HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-06-12 13:09:45