https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/299

REPUBLIC OF KENYA IN THE TAX APPEALS TRIBUNAL AT THE NAIROBI REGISTRY TAX APPEAL NO. E999 OF 2025 CHARTERED INSTITUTE OF ARBITRATORS KENYA LIMITED........................................................................APPELLANT/ APPLICANT VERSUS COMMISSIONER OF LEGAL & BOARD SERVICES DEPARTMENT.................................................................................. ........RESPONDENT RULING THE APPLICATION 1. The Applicant, vide a Notice of Motion filed under a Certificate of Urgency dated 11th June 2026 and filed on the same date, sought the following Orders: a. Spent. b. THAT the Tribunal be pleased to grant leave to the Appellant to file the Additional Documents annexed herewith, and they be deemed as having been duly filed and served. Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 1 of 8 c. THAT this Honourable Tribunal be pleased to grant any other orders as it may deem fit and just. d. THAT the costs of and incidental to this Application be in the cause. 2. The Application was supported by the Supporting Affidavit of KENNETH WYNE which was premised on the following grounds, that: a. On 2nd April 2026, we took directions on the hearing of the Appeal and requested leave to file additional documents. The Tribunal directed us to file a formal application. The Appellant seeks leave to file the following documents for the reasons given thereunder: i. iTax Confirmation Assessment Notices dated 29th August 2025 for 2022 and 2023 – These documents confirm the Respondent's Objection Decision dated 15th July 2025 and are relevant in setting out the factual background. ii. iTax Objection Application Acknowledgement Receipts dated 28th May 2025 – These documents are the formal objections filed against the Demand Notice dated 2nd April 2025. In the Statement of Facts filed herein, it is erroneously indicated that the objection was done vide a letter dated 5th May 2025. iii. The Appellant's complete set of the Memorandum and Articles of Association – The Members provided Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 2 of 8 under the List of Documents filed herein inadvertently lacks several pages. iv. The Appellant's Profile – This document provides a breakdown of the courses offered by the Appellant to its members and describes the CIArb Pathways Programme, which is the educational framework covering the disciplines of alternative dispute resolution, including mediation, arbitration, international arbitration, and adjudication. 3. The Applicant further stated THAT: 4. It stands to suffer prejudice if the leave sought herein is not granted because the additional documents wish to be provided have an implication on the main issue of whether VAT should be charged on the Appellant's income and revenue. 5. The additional documents are necessary for the determination of the real matter in dispute and will enable this Tribunal to effectually and completely adjudicate upon and settle all questions involved in the Appeal. 6. It seeks the Tribunal's indulgence for its oversight in not including the additional documents that were available at the time of filing the Appeal. It is just and fair that the Appellant be granted an opportunity to address the issues through the additional documents, which will not amount to trial by ambush, noting that the Respondent has yet to file all their documents and is not a stranger to the said documents. Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 3 of 8 7. The additional documents are in no way likely to change the contents of the original pleadings, including the prayers for setting aside the Objection Decision, and assist the Tribunal in making a conclusive finding. 8. Additionally, the documents are not bulky, and the Respondent will not be faced with difficulty in responding to them. Should the Appellant be allowed to file the documents, the Respondent shall have the opportunity to file documents in response thereto. 9. The grant of leave to file additional documents at this stage shall not benefit and/or prejudice any party's interests. The Application herein has been filed in good faith and is not aimed at frustrating the expeditious hearing and conclusion of this matter, which the Appellant so much desires, subject to fairness and justice being observed. ANALYSIS AND FINDINGS 10. The instant Application seeks to file additional documents on the ground that i. They were omitted inadvertently. ii. The documents would not change the character of its pleadings. iii. It is agreeable to the respondent being granted leave to file documents in response thereto. iv. The documents have implications on the main issue. v. The Respondent is not a stranger to the said documents. Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 4 of 8 11. The Tribunal notes that the parties appeared before it on 19th June 2026 and, considering that the judgment date for the appeal is due on 14th August 2026, the Respondent was granted leave of seven days to file a response to this application on or before the 26 th June 2026. This directive was not complied with. 12. The parties were also required to file their submissions by 26th June 2026, and this order was also not complied with by both parties. 13. The power of the Tribunal to enlarge time for filing appeals, amending pleadings, and filing additional documents to the Tribunal by appellant’s/applicant’s is granted 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). (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. Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 5 of 8 14. From the above provision, it is apparent that the power of the Tribunal to enlarge time for amending pleadings is discretionary and ought to be exercised with caution to meet the ends of justice. 15. On the question of exercising discretion, the Honourable Tribunal in Dr. Kibet Sergon -vs- Commissioner of Domestic Taxes (TAT E248 of 2023) held as follows: “From the foregoing, it is clear that the power to admit additional evidence is discretional. However, it should be exercised restrictively. That the evidence should be needful and not meant to patch up an applicant’s case on appeal. Finally, the power should be exercised sparingly but for the ends of justice” 16. The Honourable Tribunal is further guided by the case of the Commissioner of Income Tax -vs- Total Kenya Limited (2021) eKLR where it was held as follows: - “In Tarmohamed & Another vs Lakhani & Company (1958) EA 567, the Court of Appeal for Eastern Africa adopted the decision in Ladd vs Marshall (1954) WLR and stated: - “Except in cases where the Application for additional evidence is based on fraud or surprise to justify reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that if given, it would probably have an important influence on the result Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 6 of 8 of the case though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible.” 17. Considering that no response was filed to this appeal, the Tribunal is persuaded that the evidence the Applicant herein seeks to file is crucial and will have an important implication in its main appeal, and the same ought to be considered by the Tribunal to ensure fairness and equity as it determines the appeal on its merits. In any case, the Respondent will have time, as limited as it may be, to respond to the amended pleadings and additional documents, if any. 18. Accordingly, in the instant Application, the Honourable Tribunal is inclined to exercise its discretion in favour of the Applicant. FINAL ORDERS 19. The upshot of the foregoing is that the instant Application succeeds, and the Tribunal shall proceed to make the following orders: - a) The application dated 11th June 2026 be and is hereby allowed. b) The Applicant’s documents attached to its Application from pages 1 to 61 be and are hereby admitted into evidence. c) The Respondent is hereby granted leave to file a supplementary statement of facts, attaching documents in response thereto (if any) on or before 10th July 2026. Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 7 of 8 d) The matter is to be mentioned before Panel 3 for further directions on 10th July 2026, or on the immediate next date when the said panel shall be empanelled for a sitting. e) Each party shall bear its own costs. 20. It is so ordered. DATED and DELIVERED at NAIROBI this ………3rd …...…… Day of …… July...…… 2026 ..........................………………………. DR. RODNEY ODHIAMBO OLUOCH CHAIRPERSON .…..….……………………. .…..….………..................... CYNTHIA B. MAYAKA ABDULLAHI DIRIYE MEMBER MEMBER Ruling TAT No. E999 of 2025 – Chartered Institute of Arbitrators Kenya Limited Vs Commissi oner of Legal & Board Services Department Page 8 of 8