[2024] KETAT 620 (KLR)

Arm Cement PLC (In Liquidation) v Commissioner of Domestic Taxes (Appeal 606 of 2022) [2024] KETAT 620 (KLR) (19 April 2024) (Ruling)

Neutral citation: [2024] KETAT 620 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 606 of 2022

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

April 19, 2024

Between

Arm Cement PLC (In Liquidation)

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Ruling

1. The Appellant moved the Tribunal vide the Notice of Motion application dated and filed on 26th January 2024 and supported by an Affidavit sworn on an even date by Eric Misoga, a representative of the Appellant, seeking for the following Orders: -a.Spent.b.That this Honourable Tribunal be pleased to grant an order of review on account of an error apparent on the face of the record thereby setting aside its Ruling dated 3rd November 2023. c.That in subsequent thereto, this Tribunal be pleased to consider the Appellant’s application dated 14th February 2023 and the annexures thereto being the Appellant’s Amended Memorandum of Appeal, Statement of Facts and the Annexure “ARM-11” which had been hitherto filed before this Honourable Tribunal.d.That the Tribunal be pleased to grant any other order as it may deem fit.e.That costs to this application be provided for.

2. The application is premised on the grounds, that: -i.On 3rd November 2023, this Honourable Tribunal rendered a Ruling dismissing the Appellant’s application dated 14th February 2023 on the basis that the Appellant had not annexed any bundle of documents to the Affidavit in support of the said application.ii.In the impugned Ruling, the Honourable Tribunal also proceeded to observe that since the Appellant had defaulted to annex the bundle of documents that it sought to introduce, the nature of the documents sought to be introduced completely remain undisclosed and as such, it was the Tribunal’s view that the application sought could not be granted.iii.Upon perusing the Tribunal’s physical file, after the Ruling had been rendered, the Appellant noted that there was a mistake on the face of the record as the Honourable Tribunal was supplied with an incomplete application despite the fact that the proper and complete application that had annexed the relevant documents that the Appellant had sought to adduce having been filed physically on 15th February,2023. iv.There is therefore little doubt that had the Tribunal considered the appropriate pleadings, which were on record, the Tribunal would not have predicated its decision on the basis that the Appellant had allegedly defaulted to annex the relevant documents.v.In the circumstances and in the interest of justice, the instant application for review is warranted to enable the Tribunal to consider the pleadings filed before it in their entirety including the annexures to the application dated 14th February 2023. vi.Unless the impugned Ruling is reviewed as prayed, the Appellant will be prejudiced at the main hearing of this Appeal before the Tribunal as its right to fair hearing shall be curtailed.vii.On the other hand, no prejudice shall be suffered by the Respondent if the instant application were to be granted as the Respondent will be availed with an opportunity to comment on the Annexure-ARM-11, which were in any event filed and served on 15th February,2023.

3. The Respondent being served with the application filed a Replying Affidavit sworn on by Charles Webo Atetwe, an officer of the Respondent, on the 8th February, 2024 and filed on 10th February, 2024 and raised the following averments, inter alia that;i.The review applications are governed by Section 29 A of the Tax Appeals Tribunal Act, which application ought to be filed within seven (7) days from the date of the Ruling.ii.The Ruling in this case was delivered on 3rd November 2023 and the application was filed on 26th January 2024, the application was therefore made 78 days late.iii.The law does not allow the Tribunal to extend time within which a party can file an application for review, even if the Tribunal was seized of the power to extend time, the Appellant has not made such an application.iv.The instant application is time barred, there was no error on the face of the Ruling and as such it should be dismissed with costs to the Respondent.v.The Respondent was served with the application dated 14th February 2023 when the matter came up for hearing on 15th February 2023, the Respondent’s raised an objection that the application which did not have the annexures of the further documents the Appellant intended to introduce and the Appellant was directed to serve the annexures by close of business.vi.The Respondent was directed to file its response to the application by 17th February 2023, which it did, however, the Appellant forwarded the hard copies of the documents on 20th February 2023 and the Respondent did not have the opportunity to review the documents before filing its response.vii.The Appellant did tender an explanation as to why it did not provide the documents during the Objection process or at the instance of filing the Appeal.viii.The introduction of the additional documents is unnecessary given the fact that the Respondent never had sight of the said documents before making the impugned decision.

Submissions by Parties 4. The Appellant in its written submissions dated 14th February 2024 and filed on 16th February 2024, submitted as herein under.

5. The Appellant submitted that Section 29 A of the Tax Appeals Tribunal Act grants the Tribunal unfettered discretion to review its orders or decrees, which ought to be exercised judiciously and not capriciously.

6. The Appellant submitted that there was an error apparent from the face of the record as the Tribunal did not rely on the correct bundle to make its determination. That the error was brought about by the Tribunal inadvertently relying on an incomplete application seeking leave to file additional documents.

7. The Appellant acknowledged that the application for review was filed outside the seven days provided in law and prayed that the Tribunal would extend time in consideration of the reasons that there was a mix up when the Tribunal moved from its former premises to the current one.

8. The Appellant relied on the principle of equity that “Equity will not suffer a wrong without a remedy”.

9. The Appellant relied on the following case law;i.National Bank of Kenya Limited vs. Ndungu Njau [1997] eKLR.ii.James Kiiru Mwangi vs. Gibson Kimani Mwangi & Another [2021] eKLR.iii.Paul Mwaniki vs. National Hospital Insurance Fund Board of Management [2020] eKLR.iv.Zablon Mokua vs. Solomon M. Choti & 3 Others [2016] eKLR.

10. The Respondent in its written submissions dated 8th February 2024 and filed on 10th February 2024, submitted as herein under;

11. The Respondent submitted that Section 29 A of the TAT Act is clear as to the period within which an application for review can be brought, being seven days of the date of the order or decree sought to be reviewed. In the instant case, the application was brought 78 days later and the Appellant has not proffered any reasons for the delay in making the application, which ought to be dismissed.

12. The Respondent submitted that there was no error on the face of the Ruling of the Tribunal, as the proper position is that the Appellant did not supply the documents it sought to be introduced when filing the application on 15th February 2023.

13. The Respondent submitted that the Appellant’s application was dismissed not only for the reasons that the documents sought to be introduced were not annexed to the Affidavit, which position is true. The application filed on 15th February 2023 was also dismissed by the Tribunal on other grounds as outlined in the Ruling.

14. The Respondent relied on the following case law;i.Chester Insurance Brokers vs. The Commissioner of Domestic Taxes.ii.National Bank of Kenya Ltd vs. Ndugu Njau.

Analysis and Findings 15. The Appellant in support of its application submitted that there was an error apparent on the face of the record, that the Tribunal in making it Ruling delivered on 3rd November 2023 did not rely on the correct bundle to make its determination. The Appellant further argued that the error was brought about by the Tribunal inadvertently relying on an incomplete application at the point the Appellant was seeking leave to file additional documents. That had the Tribunal relied on the proper bundle it would have reached a different finding.

16. The Respondent in opposition to the instant application argued that it was true that the Appellant’s application dated 14th February 2023 did not have any further documents annexed thereto, that the Appellant was directed to serve the Respondent with the said documents by close of business on the 15th February 2023, however, the Appellant send the documents to the Respondent on 20th February 2023 when the Respondent had filed its response on 17th February 2023 in compliance with the Tribunal’s directions.

17. The Respondent maintained that the Tribunal made a proper finding in its Ruling of 3rd November 2023 and that there exists no error apparent on the face of the Ruling. The Appellant is mandated by law under the provisions of Section 29 A of the TAT Act to lodge it application for review within seven days but filed it 78 days later and did not proffer any reasons for the lateness.

18. The Tribunal having considered the rival arguments herein, wishes to address the same as herein under;

19. The Tribunal has had the opportunity to peruse the record and scrutinize the email and attachments thereto send by the Applicant on 15th February 2023 at 7:26 am at the point of filing its application dated 14th February 2023 and noted as follows;i.Firstly, from the attachment in the said email, the Appellant electronically filed the following documents a certificate of urgency, a Notice of Motion and an Affidavit in support of the application, there were no documents attached/annexed thereto.ii.Similarly, this was the case with the hard copies placed on record;iii.Secondly, the Appellant has not refuted the Respondent’s allegation that service of the bundle of documents (annexures) was effected separate of the application on 20th February 2023, when the Respondent had already filed its response to the application on 17th February 2023.

20. The Tribunal has reviewed the Appellant’s Affidavit in support of the application dated 14th February 2023 and filed on 15th February 2023 and has noted that there exists no single averment that seeks to introduce, explain, attach or avail the annexures of the additional document for the perusal by the Tribunal or the Respondent. In fact, there is no averment by the Appellant in the said Affidavit that purposed to state the nature or character of the additional document to enable the Tribunal as well the Respondent appreciate their probative value.

21. The Tribunal in its Ruling made on 3rd November 2023, stated that the Appellant did not file any Affidavit to attempt to disclose the nature of the documents sought to be introduced through the orders prayed. However, the Appellant maintained that the documents were placed on record and the Tribunal ought to have considered the same.

22. Be that as it may, it is trite law that any evidentiary material(s) for the Tribunal’s consideration in any application before it, ought to be introduced by way of an Affidavit and as an annexure or annexures thereto. The Appellant’s action to serve upon the Respondent with a separate bundle of documents during the pendency of the application dated 14th February 2023 was tantamount to filing the documents without leave of the Tribunal, which leave was being sought in the said application, and is unprocedural.

23. It is noteworthy, that the Tribunal is obligated to consider and evaluate all the material placed before it in making its decisions, from the foregoing, it is clear that the said additional documents were not annexed to the Appellant’s Affidavit in support of the application sworn on 14th February 2023 or any further/supplementary affidavit, as to properly and procedurally introduce the documents for consideration by the Tribunal.

24. The Tribunal being guided by the provisions of Section 29 A of the TAT Act noted that the law makes provision for an application for review to be made within seven (7) days of such the Ruling sought to be reviewed, however, the Appellant lodged the instant application 78 days late and has not presented any reasonable grounds or any for delay in the making of this application.

25. Section 29 A of the TAT Act, regarding review of orders and decrees, provides as follows;“(1)A person who is aggrieved by a decree or an order from which no appeal has been preferred from the Tribunal to the High Court, may apply for review of the decree or the order within seven days from the date the decree or order was made by the Tribunal.(2)Applications for review of decree or orders under subsection (1) may be made—(a)upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by the applicant at the time when the decree was passed or the order was made;(b)on account of some mistake or error apparent on the face of the record; or(c)for any other sufficient reason.(3)Upon receipt of an application for review under subsection (1), the Tribunal may, set aside, vary or affirm the decree or the order, stating reasons for review as it deems fit within fourteen days after receipt of an application.”

26. The Tribunal’s interpretation of Section 29 A (1) of the TAT Act is that an application for review of a decree or order of the Tribunal where no Appeal has been preferred to the High Court ought to be presented within seven (7) days and ought to meet the conditions set out under subsection (2) therein.

27. The Appellant has admitted having made this application beyond the statutory timelines and has not tendered the grounds and/or reasons for the delay in so doing.

28. Further, the Appellant has attempted in its submissions to persuade and invite the Tribunal to be guided by the provisions of Sections 80 and 63 (e) of the Civil Procedure Act as well as Order 45 Rule 1 of the Civil Procedure Rules 2010. However, the Tribunal shall not descend into that arena, as Section 14 of the TAT Act expressly excludes the application of the provisions of the Civil Procedure Act Cap 21 of the laws of Kenya in all of the proceedings before the Tribunal.

29. The Tribunal therefore finds that the Appellant has not demonstrated the error apparent on the face of the record, the Appellant has not presented the application timeously and has not tendered the grounds for the delay in making of the application to the satisfaction of the Tribunal.

30. Consequently, the application is not merited and therefore fails.

Disposition 31. The upshot of the foregoing is that the Tribunal finds that the application dated January 26, 2024 is unmeritorious and accordingly makes the following orders: -a.That the application dated January 26, 2024 be and is hereby dismissed.b.No orders as to costs.

32. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY APRIL, 2024ERIC NYONGESA WAFULA - CHAIRMANMUTISO MAKAU ELISHAH N. NJERU - MEMBER MEMBEREUNICE N. NG’ANG’A ABRAHAM K. KIPROTICH - MEMBER MEMBER