[2024] KETAT 1036 (KLR)

Beiersdorf East Africa Limited v Commissioner of Domestic Taxes (Tax Appeal 789 of 2022) [2024] KETAT 1036 (KLR) (19 July 2024) (Ruling)

Neutral citation: [2024] KETAT 1036 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 789 of 2022

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

July 19, 2024

Between

Beiersdorf East Africa Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Appellant vide a Notice of Motion dated the 23rd day of April, 2024 filed under a Certificate of urgency on the even date and which is supported by an Affidavit sworn by Christine Kahema Muthui, an Advocate for the Appellant, on the same date, sought for the following Orders:-a.Spentb.That this Honourable Tribunal be pleased to extend the time for filing of the Appellant’s application for review of orders herein.c.That the Appellant be granted leave to file its application for review of orders out of time against the Judgment and Decree of the Tribunal delivered on 28th April, 2023 in Appeal No.789 of 2022. d.That this Honourable Tribunal be pleased to give orders and directions as it may deem fit and just.

2. The application is premised on the grounds, that:-a.The delay in failure to lodge the application for review of orders within the time as stipulated by the Tax Appeals Tribunal Act was as a result of the information only becoming available recently in the Judgment of the Tax Appeal No.1026 of 2022 London Distiller (K) Limited vs. Commissioner of Legal Services Board Coordination which was delivered on 8th March, 202 which is based on a similar question of law.b.The intended Appeal is plausible with overwhelming chances of success.c.The delay is inordinate and is excusable owing to the reasons set out above.d.The Respondent is executing the orders in respect of the said Judgment.e.The interests of justice will be better served by allowing the orders herein and giving the Appellant an opportunity to have the application for review of orders filed herein be deemed as duly filed.f.The Respondent will suffer no prejudice if this application is granted.g.For the reasons and as further expounded in the accompanying Affidavit, it is crucial for the matter to be certified urgent and heard forthwith to forestall a manifest miscarriage of justice. The Appellant’s agents are available on short notice and willing to further address the Tribunal on any issue and through any medium that the Tribunal may direct.

3. The Respondent upon being served with the application filed a Replying Affidavit sworn by Lydia Ng’ang’a, an Advocate of the Respondent, on the 30th April, 2024 and filed on the 2nd May, 2024 and in which it raised the following grounds in opposition to the application:-a.That the Tribunal delivered a Judgment dismissing the Appeal on the 28th April, 2023. b.That the application is based on the Judgment of the Tribunal delivered on 8th March, 2024 wherein the Tribunal allowed an Appeal on a similar question of law.c.That the application is not merited for review as it seeks to revive and re-litigate matters that had already been heard and determined by the Tribunal.d.That the application us preposterous and contrary to the provisions of the Tax Appeals Tribunal Act on review of the orders and decrees made by the Tribunal.e.That the Tax Appeals Tribunal Act establishes the powers of review and the procedure of review by the Tax Appeals Tribunal under Section 29A of the Act.f.That the application fails to meet the procedural requirements under Section 29A of the Act as the application has been lodged on 23rd April, 2024 which is 361 days after the orders in the matter were issued by the Tribunal.g.That the delay in seeking a review is inordinate and inexcusable since the Tax Appeals Tribunal Act, save for the power of review of the Tribunal, provides another recourse of appeal to the High Court where a party is aggrieved by the decision of the Tribunal.h.That the Appellant failed to seek for a review of the decision within the statutory timelines and further failed to lodge an appeal at the High Court being dissatisfied with the decision of the Tribunal.i.That the application is a blatant abuse of the process of the Tribunal.

Analysis and Findings 4. In due compliance with the directions of the Tribunal to the effect that the application be canvassed by way of written submissions the parties filed submissions that were adopted by the Tribunal on the 9th May, 2024. The Tribunal has been appropriately guided by the submissions of the parties in arriving at its findings hereinafter.

5. The jurisdiction of the Tribunal to review its decrees and orders has now been immortalized under Section 29A of the Tax Appeals Tribunal Act which 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)Application for review of decree or orders under subsection (1) may be made –(a)upon discovery of new or 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” (Emphasis Added)

6. The Respondent vide its application filed on the 23rd day of April, 2024 seeks to review the orders issued in the Judgment and Decree of the Tribunal in the Judgment delivered in this very matter on the 28th April, 2023. There is an obvious lapse of about 361 days from the date of the delivery of the Judgment to the date of filing of the application.

7. The application is predicated on the ground that the Judgment entered herein on the 28th April, 2023 as against the Appellant was at variance with a Judgment entered on 8th March, 2024 in favour of another third party Appellant in an appeal based on common facts and raising a similar question of law.

8. The Appellant did not intimate of any dissatisfaction on its part with regard to the Judgment immediately subsequent to the delivery thereof by the Tribunal on the 28th April, 2023 or at any time prior to the delivery of the Judgment in a similar matter on the 8th March, 2024. There has been no disclosed cause for the delay in the filing of the application for the review within the permissible statutory timelines under Section 29A of the Tax Appeals Tribunal Act. The delay is inexcusably inordinate and offends the word and spirit of the provisions of Section 29A(1) of the Tax Appeals Tribunal Act.

9. There has been no attempt to bring the application within the ambit of the grounds for review envisaged under the provisions of Section 29A(1) of the Tax Appeals Tribunal Act. The fact that an alternative decision was subsequently arrived at is not a good reason for the Tribunal to re-open the previous Judgment. This will otherwise be tantamount to relitigation with a view of correction of an error arising from the interpretation and wrongful application of the facts and law arising from a separate dispute under a determination.

10. In the circumstances, the Tribunal finds that the application was not only inordinately filed but it does not meet the basic statutory threshold for the review of the Judgment delivered herein on the 28th April, 2023 as encapsulated under Section 29A of the Tax Appeals Tribunal Act.

Disposition 11. The upshot of the foregoing analysis is that the application is not only incompetent but is equally lacking in merit and the Orders that recommend themselves to the Tribunal are as follows:-a.The application be and is hereby dismissed.b.No orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JULY, 2024. ERIC NYONGESA WAFULACHAIRMANEUNICE N. NG’ANG’A MUTISO MAKAUMEMBER MEMBERELISHAH N. NJERU ABRAHAM K. KIPROTICHMEMBER MEMBER