Commissioner of Customs & Border Control v UR Home International Kenya Ltd (Customs Tax Appeal E043 of 2024) [2026] KEHC 10060 (KLR) (Commercial and Tax) (10 July 2026) (Ruling)

Commissioner of Customs & Border Control v UR Home International Kenya Ltd (Customs Tax Appeal E043 of 2024) [2026] KEHC 10060 (KLR) (Commercial and Tax) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10060 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Customs Tax Appeal E043 of 2024 RC Rutto, J July 10, 2026 Between Commissioner of Customs & Border Control Appellant and Ur Home International Kenya Limited Respondent Ruling 1.Before this Court for determination are two applications. 2.The first application is dated 6th November, 2025. It seeks leave for the firm of BMO Advocates LLP to come on record for the Respondent after judgment, and an order re-opening the matter for hearing and subsequent leave for the Respondent to file its response and/or submissions to the appeal. 3.The application is anchored on grounds that: the Respondent had initially filed Tax Appeal No. E519 of 2023 before the Tax Appeals Tribunal challenging the Appellant's review decision dated 4th August, 2023. The Tribunal subsequently delivered judgment on 11th October, 2024, in favour of the Respondent. Dissatisfied with that decision, the Appellant lodged an appeal before the High Court through HCCOMMCTA No. E043 of 2024 seeking, inter alia, the setting aside of the Tribunal’s judgment, reinstatement of the review decision and an award of costs in its favour. The appeal was premised on allegations that the Tribunal had failed to consider the evidence of the Appellant's witness, one Stanley Karuri, thereby occasioning injustice and violating the principles of natural justice and the right to a fair hearing. 4.The Respondent further contends that notwithstanding the institution of the appeal, it was never served with the Notice of Appeal, Memorandum of Appeal, Record of Appeal, hearing notices or any other pleadings relating to the proceedings before the High Court. Consequently, the appeal proceeded and was determined without its participation. The Respondent avers that it only became aware of the existence of the High Court proceedings after the judgment had been delivered on 29th August, 2025, overturning the Tribunal's decision and dismissing its appeal before the Tribunal. It states that it was shocked to learn that the judgment of the Tribunal in its favour had been set aside without its participation in the proceedings leading to that outcome. It therefore maintains that the judgment was obtained in violation of its constitutional right to a fair hearing and that unless the matter is reopened, it stands to suffer substantial loss, prejudice and injustice. 5.The Respondent thus urges the Court to grant it an opportunity to file its response and be heard on the merits of the appeal. It maintains that the application has been brought promptly and in good faith and that no prejudice will be occasioned on the Appellant if the orders sought are granted. 6.In opposing this application, the Appellant filed a Replying Affidavit sworn on 17th November, 2025, by Frank Orondo, a Valuation Officer in the Customs and Border Control Department of the Kenya Revenue Authority. He averred that the Respondent had lodged an appeal before the Tax Appeals Tribunal challenging the Appellant’s review decision dated 4th August, 2023, and actively participated in the proceedings until 14th February, 2024, after which it ceased attending to the matter. According to the Appellant, the Respondent subsequently failed to attend several mentions before the Tribunal. Following the Tribunal’s judgment delivered on 11th October, 2024, in favour of the Respondent, the Appellant lodged a Notice of Appeal and requested for proceedings on 24th October, 2024. He states that both the Notice of Appeal and the request for proceedings were served upon the Respondent through its representatives. Thereafter, the Memorandum of Appeal was filed on 18th November, 2024, and was likewise served upon the Applicant (Respondent above). 7.The Appellant further avers that when the appeal came up for mention before the Deputy Registrar on 21st March, 2025, the Respondent failed to attend, prompting the Court to direct that it be served with a mention notice. That pursuant to those directions, the Appellant states that it served the Applicant with a mention notice for 7th April, 2025, together with the relevant documents and filed a return of service. The Appellant asserts that even on the subsequent mention date, the Respondent remained absent, necessitating further directions that it be served with the Record of Appeal and Supplementary Record of Appeal. The Appellant maintains that the Respondent was at all material times aware of the appeal and had been duly served with the relevant pleadings and notices. 8.The Appellant denied the allegation that the appeal was prosecuted without service upon the Respondent describing that allegation as false, misleading and unsupported by evidence. The Appellant maintained that the Respondent had either deliberately chosen not to participate in the appeal proceedings or had failed to act upon the notices and documents that had been duly served upon it. 9.It was further averred that the Respondent had not demonstrated that the email address through which the pleadings and court notices were sent was incorrect, or inaccessible. According to the Appellant, the same email address appeared on the on the Applicant’s i-Tax profile and had consistently been used by both the Appellant and the Tribunal to communicate with the Respondent. Accordingly, the Appellant stated that any failure by the Respondent or its representatives to respond to the communications cannot justify the reopening of the appeal. 10.The Appellant also challenged the timeliness of the application, arguing that the Respondent had failed to disclose when it became aware of the High Court judgment or to explain the delay in approaching the Court. It points out that the judgment was delivered on 29th August, 2025, and that the present application was only filed approximately two months later, after enforcement proceedings had commenced. The Appellant therefore contended that the application had not been brought within a reasonable time. 11.Further, the Appellant maintained that it would suffer prejudice if the orders sought were granted, as it would incur additional litigation costs and delay in the enforcement of the judgment. It was also contended that reopening the appeal would hamper the Appellant in the discharge of its statutory mandate of revenue collection and would reward a taxpayer who had failed to diligently prosecute its case. The Appellant asserted that the Respondent had not shown any reasonable cause for its failure to participate in the appeal proceedings despite having been served. 12.Consequently, the Appellant urged the Court to dismiss the application with costs and allow it to enjoy the fruits of the judgment delivered in its favour. 13.The Respondent filed a Further Affidavit sworn by Dianah Kioko on 6th Februar,y 2026, in response to the Appellant’s Replying Affidavit contending that a careful examination of the Appellant’s response and annexures reveals a deliberate attempt to keep the Respondent unaware of the appeal proceedings and that the appeal was not properly instituted before the Court. It is averred that although the Tax Appeals Tribunal delivered its judgment on 11th October, 2024, the Appellant failed to comply with the mandatory requirements of Section 32 of the Tax Appeals Tribunal Act of filing a Notice of Appeal before the Tribunal within 30 days of the decision and to serve the same upon the Respondent within two days of filing. 14.According to the Respondent, the Notice of Appeal dated 24th October, 2024, relied upon by the Appellant bears no endorsement, filing date, signature of the Tribunal clerk or official stamp of the Tribunal and therefore does not constitute proof that it was ever lodged before the Tribunal. The Respondent consequently argues that the Notice of Appeal was never filed and that having failed to comply with the statutory requirements governing appeals from the Tribunal, the entire appeal before the High Court was devoid of jurisdiction. 15.The Respondent further maintained that even assuming the Notice of Appeal was filed, there was no proper service of the same. It points out that the proceedings before the Tribunal had been filed through ARM Associates and that the designated email address for service in those proceedings was info@dmkconsultancy.com . The Respondent argues that the Appellant instead purported to effect service through urhomeintelkenyaltd@gmail.com which was not the official address provided for service. It is further argued that no evidence was produced to demonstrate that the alleged emails were transmitted, delivered, or received. 16.With respect to the Memorandum of Appeal filed before the High Court, the Respondent maintains that it was never served upon it. It points to the face of the Memorandum of Appeal which according to the Respondent indicates that service was intended for a different entity, namely Alpha Taleo Capital Limited, through email addresses unrelated to the Respondent. On that basis, the Respondent stated that the Memorandum of Appeal was never intended for service upon it and was never brought to its attention. The same position is taken in respect of the mention notice dated 27th March, 2025, which the Respondent asserted it was not served through the service channels that had been provided in the Tribunal proceedings. 17.The Respondent further referred on the affidavits of service filed by the Appellant and contends that they demonstrate service upon persons other than the Respondent. It maintains that the Appellant failed to effect service through the email address that had been expressly provided for service in the Tribunal proceedings and consequently, there was no effective service of either the appeal documents or the subsequent court notices. The Respondent therefore reiterates that it was never served and had no knowledge of the appeal proceedings before this Court. 18.It therefore urged the Court to set aside the judgment delivered on 29th August, 2025, and substitute it with an order dismissing the appeal for want of jurisdiction, on account of the Appellant’s failure to properly institute and serve the appeal. 19.The Respondent also filed a second application dated 1st December, 2025. It seeks a temporary injunction barring the Appellant, whether by themselves or its agents, from enforcement of the notice dated 26th November, 2025, and any other notice issued and/or to be issued by the Appellant together with any consequential enforcement steps pending the hearing and determination of the application dated 6th November, 2025. 20.The application is founded on the grounds that the Appellant had commenced enforcement measures to recover the disputed tax liability which remains the subject of the pending application dated 6th November, 2025. The Respondent contends that the tax demanded is substantial and enforcement will therefore cause the Respondent irreparable loss, disrupt its operations and occasion grave prejudice before it’s are heard. 21.This Court on 28th January, 2026, granted interim orders barring the Appellant and or its agents from enforcement of the notice. 22.In response to this second application dated 1st December, 2026, the Appellant filed its Replying Affidavit sworn on 9th February, 2026. The Appellant contends that the Respondent has failed to establish a prima facie case with a probability of success, particularly because there already existed a similar application seeking substantially the same reliefs. It further stated that the notice issued by the Appellant on 26th November, 2025, was lawfully issued pursuant to its statutory mandate and that there was no order staying execution or enforcement at the time the notice was issued. 23.Consequently, the Appellant argued that the Respondent’s dissatisfaction with a lawful statutory notice does not, by itself, justify the grant of injunctive relief. It maintains that the Respondent has not demonstrated that it will suffer irreparable harm incapable of being compensation by an award of damages. That a mere allegation of irreparable loss is insufficient and that the Respondent has failed to place before the Court any evidence demonstrating the nature or extent of the prejudice it is likely to suffer. The Appellant therefore argued that the Respondent has not satisfied the established principles for the grant of an injunction. 24.Further, the Appellant asserted that the balance of convenience tilts in its favour, as it should be permitted to enjoy the fruits of a lawful judgment. That the Respondent is effectively seeking to restrain the enforcement of a valid judgment through injunctive orders while there already exists an application for stay of execution pending before the Court. It is therefore argued that the Respondent has not demonstrated any exceptional circumstances warranting the grant of the temporary injunction sought. 25.The Court directed that parties file submissions in respect of both applications. The Respondent/Applicant’s submissions are dated 10th February, 2026, while the Appellant/Respondent’s submissions are dated 25th February, 2026. Respondent’s submissions 26.The Respondent (Applicant) identifies four issues for determination that is: whether the appeal was competently instituted in accordance with Section 32 of the Tax Appeals Tribunal Act; whether the Respondent was served with the Notice of Appeal, Memorandum of Appeal and hearing notices; whether the judgment delivered on 29th August, 2025, ought to be set aside for want of jurisdiction and violation of the right to a fair hearing and; whether the Respondent is entitled to stay of execution and injunctive relief pending determination of its application. 27.On the first issue, the Respondent submits that the Appellant failed to comply with the mandatory requirements of Section 32 of the Tax Appeals Tribunal Act which requires an intending Appellant to file a Notice of Appeal before the Tribunal within 30 days of the Tribunal’s decision and thereafter serve the same upon the Respondent within 2 days. The Respondent maintains that the purported Notice of Appeal lacks any endorsement, stamp or proof of lodgment before the Tribunal and that there was no evidence that it had ever been served upon the Respondent. Consequently, the Respondent contends that there was no valid foundation upon which the appeal before the High Court could stand. In support of this position, reliance is placed on the decisions in Speaker of the National Assembly v Karume [1992] KLR 21, Commissioner of Domestic Taxes v Menengai Oil Refineries Ltd [2018] eKLR, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR for the proposition that jurisdiction is conferred strictly by statute and that statutory procedures must be followed. 28.On the second issue, the Respondent submits that it was never served with the Notice of Appeal, Memorandum of Appeal, mention notices or hearing notices. It argues that the Memorandum of Appeal on record indicated service upon Alpha Taleo Capital Limited, an entity unrelated to the Respondent and that the affidavits of service relied upon by the Appellant similarly referred to service upon third parties rather than the Respondent through its designated address for service. 29.The Respondent contends that service upon unrelated parties cannot amount to effective service and that the Appellant deliberately ignored the official address that had been provided during the Tribunal proceedings. It therefore maintains that it was denied an opportunity to participate in the appeal and was condemned unheard in violation of Article 50 of the Constitution. To support this argument, the Respondent relies on James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR and Pithon Waweru Maina v Thuku Mugiria [1983] eKLR, which emphasize the centrality of service and the right to be heard. 30.On the third issue, whether the judgment ought to be set aside, the Respondent submits that the judgment delivered on 29th August, 2025, is a nullity because it was rendered in proceedings that were both jurisdictionally defective and conducted in violation of the right to a fair hearing. The Respondent cites Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 for the proposition that an act founded on a nullity is itself a nullity; Phoenix of E.A. Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR for the principle that proceedings conducted without jurisdiction are void; and Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 for the proposition that courts retain inherent jurisdiction to set aside judgments obtained through procedural injustice. It therefore urges the Court to exercise its inherent jurisdiction and set aside the impugned judgment ex debito justitiae. 31.Lastly, the Respondent submits that it has satisfied the threshold for the grant of stay of execution and injunctive relief. It argues that the enforcement notice issued by the Appellant constitutes execution through administrative enforcement mechanisms and that the tax demanded is substantial. According to the Respondent, enforcement would disrupt its business operations, occasion irreparable loss and render its pending applications nugatory. The Respondent further contends that it moved the Court promptly upon learning of the judgment and the intended enforcement measures and that the balance of convenience favours preservation of the status quo. Reliance is placed on Commissioner of Domestic Taxes v Total Touch Cargo Holland [2018] eKLR in support of the argument that courts may restrain enforcement measures where necessary to preserve the subject matter of a dispute. 32.In conclusion, the Respondent urges the Court to allow the applications. Appellant’s submissions 33.The Appellant opposes the Respondent’s applications dated 6th November, 2025, and 1st December, 2025, contending that both are devoid of merit and ought to be dismissed with costs. It identifies three issues for determination, that is: whether the application dated 1st December, 2025, is sub judice; whether the Court should reopen the matter and set aside the judgment delivered on 29th August, 2025; and whether the Respondent is entitled to an order of stay of execution. 34.On the question of sub judice, the Appellant submits that the application dated 1st December, 2025, seeks substantially similar reliefs as the first application dated 6th November, 2025. It submits that the Respondent had already sought orders of stay of execution in the first application and after the Court declined to grant the stay sought and directed the filing of a further affidavit, the Respondent instead filed a fresh application seeking to restrain the Appellant from enforcing the same judgment. According to the Appellant, the two application involve the same parties arise from the same subject matter and seek substantially similar reliefs, thereby offending the doctrine of sub judice as embodied in Section 6 of the Civil Procedure Act. Reliance is placed on Speaker of the National Assembly & Another v Senate & 12 Others [2021] KECA 282 (KLR) and Kenya National Commission on Human Rights v Attorney General & 17 Others [2020] eKLR for the principles governing the doctrine of sub judice. 35.With respect to the application to set aside of the judgment and re-open the proceedings, the Appellant submits that the Respondent has failed to satisfy the requirements under Rule 13 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015. It contends that a party seeking a rehearing must demonstrate reasonable cause for its failure to attend the proceedings. The Appellant maintains that the Respondent has not established any sufficient reason for its failure to participate in the appeal proceedings and that its assertion that it was never served is unsupported by the evidence. 36.The Appellant, further maintains that the Respondent and its representatives before the Tribunal were duly served with the appeal documents, mention notices and hearing notices through the email addresses previously used in the Tribunal proceedings, including an email address belonging to the Respondent. It submits that the affidavits and returns of service filed in Court have not been impeached and that there was no indication that the emails transmitted failed to reach the intended recipients. It therefore submits that the Respondent deliberately ignored the proceedings and only resurfaced when enforcement action commenced. 37.The Appellant also argues that the Respondent’s challenge to the competence of the appeal and the alleged failure to comply with Section 32 of the Tax Appeals Tribunal Act concerns the merit of the judgment and falls outside the scope of an application for rehearing or setting aside. In its view, such matters can only properly be raised on appeal and not through an application seeking to set aside an ex parte decision. In support of this position, the Appellant relies on the cases of Njoroge Ngage “B” v Mikeline Njoki Kairu [2006] KEHC 1770 (KLR), Shah v Mbogo & Another [1967] EA 116 and Tana Teachers Co-operative Savings and Credit Society Ltd v Andriano Muchiri [2018] eKLR, for the proposition that judicial discretion should not be exercised to assist parties who deliberately evade proceedings or fail to comply with court directions. 38.The Appellant also submits that reopening the matter would undermine the principle of finality in litigation and encourage indolence among litigants. It maintains that the Respondent was duly notified of the proceedings and failed to provide any satisfactory explanation for its non-attendance. According to the Appellant, the Respondent’s allegations of improper service are merely a strategy aimed at preventing the Appellant from enjoying the fruits of its judgment. 39.On the prayer for stay of execution, the Appellant submits that the Respondent has not met the threshold under Order 42, rule 6 of the Civil Procedure Rules. It argues that the application was not filed timeously, noting that judgment was delivered on 29th August, 2025, and the Respondent only moved the Court after enforcement measures were initiated. The Appellant contends that a delay of approximately three months is unreasonable and demonstrates that the application was prompted by the prospect of enforcement rather than any genuine grievance. 40.The Appellant further submits that the Respondent has failed to demonstrate substantial loss. It submits that the taxes demanded are lawfully due and payable and that, should the Court ultimately find that the taxes were wrongly collected, the law provides a mechanism for refund under Section 144 of the East African Community Customs Management Act, 2004. Consequently, the Appellant contends that the Respondent has not established any loss beyond the ordinary consequences of complying with a lawful tax demand. Reliance is placed on Kenya Women Microfinance Ltd v Martha Wangari Kamau [2020] KEHC 4845 (KLR) and Century Oil Trading Company Ltd v Kenya Shell Ltd Nairobi (Milimani) HCMCA No. 1561 of 2007 for the proposition that substantial loss must be something more than the ordinary consequences of execution. 41.Regarding security, the Appellant submits that the Respondent has not demonstrated any willingness to furnish security for the due performance of the decree as required by Order 42, rule 6. While acknowledging that security may take different forms, the Appellant submits that some form of security is necessary given the substantial taxes that remain outstanding. In support of this argument, reliance is placed on Nduhiu Gitahi v Warugongo [1988] KLR 621 and Keroche Breweries Limited v Commissioner of Domestic Taxes [2020] KEHC 9627 (KLR). 42.In conclusion, the Appellant urges the Court to dismiss both applications with costs and allow it to enjoy the fruits of the judgment delivered on 29th August 2025. In support of this position, it relies on Glory Driving School v Formax Insurance Brokers Limited (Civil Appeal No. 52 of 2019) [2024] KEHC 14360 (KLR), where the Court emphasized the need for finality in litigation and the principle that a party who fails to utilize an opportunity to be heard cannot later seek to avoid the consequences of its own inaction. Analysis and determination 43.I have carefully considered the two applications dated 6th November, 2025, and 1st December, 2025,respectively, the affidavits filed in support and in opposition thereto, the rival submissions by counsel and the authorities cited by the parties. These applications raise the following issues for determination:a.Whether the Respondent/Applicant has established sufficient cause to warrant the reopening of the appeal and the setting aside of the judgment delivered on 29th August 2025.b.Whether the Respondent is entitled to the orders of stay of execution and injunctive relief sought. a. Whether the Respondent/Applicant has established sufficient cause to warrant the reopening of the appeal and the setting aside of the judgment delivered on 29th August, 2025. 44.The Respondent's application is principally founded on the assertion that it was never served with the Notice of Appeal, Memorandum of Appeal, Record of Appeal, mention notices, hearing notices or any other documents relating to the appeal. It contends that as a consequence, the appeal proceeded in its absence and culminated in the judgment delivered on 29th August, 2025, without it being afforded an opportunity to participate in the proceedings. The Respondent therefore urges the Court to reopen the appeal and set aside the judgment on the basis that it was denied its constitutional right to a fair hearing. 45.The Appellant disputes those assertions. Its position is that the Notice of Appeal, request for proceedings, Memorandum of Appeal, mention notices and subsequent court documents were duly served upon the Respondent through electronic mail using addresses that had previously been utilized in the Tribunal proceedings and which were associated with the Respondent. The Appellant maintains that the Respondent was at all material times aware of the appeal but deliberately failed to participate in the proceedings. According to the Appellant, the Respondent's present application is merely an attempt to delay the enforcement of a valid judgment after execution proceedings had commenced. 46.I have carefully considered the parties respective positions. The law governing the setting aside of ex parte proceedings is well settled. Rule 13 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 empowers this Court to rehear an appeal determined in the absence of a party where sufficient cause is shown. The exercise of that discretion is guided by the broader principles applicable to setting aside ex parte judgments. In Shah v Mbogo & Another [1967] EA 116, it was held that the court’s discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake but not to assist a litigant who has deliberately sought to obstruct or delay the course of justice. 47.The question for determination is therefore whether the Respondent's absence from the appeal proceedings was attributed to deliberate inaction on its part or whether it resulted from lack of proper notice of the proceedings. The importance of service in judicial proceedings cannot be overstated. Service is the mechanism through which a party is notified of proceedings affecting its rights and afforded an opportunity to be heard. It is the procedural safeguard that gives practical effects to the rules of natural justice and constitutional guarantee of a fair hearing under Article 50(1) of the Constitution. 48.The Court of Appeal in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR emphasized that where a judgment is entered without proper service of summons, such judgment is irregular and liable to be set aside as a matter of right. The court observed that service is not a mere procedural formality but the very foundation upon which the right to be heard is anchored. 49.In the present matter, the Appellant has exhibited various documents and affidavits of service in support of its contention that service was duly effected upon the Respondent. However, the Respondent has mounted a specific and substantive challenge to both the propriety and effectiveness of that service. 50.First, it contends that the designated address for service during the Tribunal proceedings was info@dmkconsultancy.com, whereas the Appellant allegedly served the appeal documents through a different email address, namely urhomeintelkenyaltd@gmail.com. Significantly, the Appellant has not provided a satisfactory explanation as to why it departed from the designated address for service, nor has it produced evidence demonstrating connection between the alternative email addresses and the Respondent. In the absence of such explanation, the Respondent challenge raises a legitimate and substantial question as to whether service was effected upon the proper recipient. On a balance of probability, I find that the effectiveness of the alleged service has been questioned. 51.Secondly, the Respondent points to what it considers inconsistencies in the Memorandum of Appeal and the affidavits of service. In particular, it asserts that some of the documents indicate service upon Alpha Taleo Capital Limited, an entity unrelated to the Respondent. It further contends that the affidavits of service refer to service upon third parties rather than upon the Respondent through its designated address for service. These assertions were not meaningfully rebutted by the Appellant. The absence of a clear explanation regarding these discrepancies lends further weight to the Respondent's contention that effective service was not effected. Once again, I find that the propriety of the alleged service has been substantially impugned. 52.While the Appellant maintain that the email address used belonged to the Respondent and had previously been utilized in communications between the parties, the Court cannot ignore the fact that the Respondent has consistently challenged both the manner and effectiveness of the alleged service. More importantly, is the Respondent assertion throughout these proceedings that it only became aware of the appeal after judgment had been delivered and enforcement measures commenced. 53.At this stage, the Court is not called upon to make definitive findings regarding the competing factual positions on service. Rather, the Court's task is to determine whether sufficient doubt has been raised concerning service so as to justify reopening the proceedings in the interests of justice. In my view, the material placed before the Court raises genuine and substantial questions regarding whether the Respondent was effectively notified of the appeal proceedings. 54.This Court is particularly persuaded by the fact that the judgment sought to be impugned overturned a decision of the Tax Appeals Tribunal that had been rendered in favour of the Respondent. The consequences of that judgment are substantial, including exposure to a tax liability exceeding Kshs. 18 million. In those circumstances, this Court must be slow to shut out a party who has demonstrated a plausible basis for contending that it was denied an opportunity to participate in the proceedings. 55.This Court is equally alive to the principle that litigation must come to an end and that a successful litigant is entitled to enjoy the fruits of its judgment. However, that principle cannot override the equally fundamental requirement that no party should be condemned unheard. Where there exists a genuine question as to whether a party was properly notified of proceedings affecting its rights, the demands of substantive justice must take precedence over considerations of procedural finality. 56.I am therefore satisfied that the Respondent has raised serious and arguable questions regarding the service of the Notice of Appeal, Memorandum of Appeal, Record of Appeal and subsequent court notices. Those questions go to the very heart of the Respondent's right to be heard and consequently, to the legitimacy of the proceedings that culminated in the judgement of 29th August, 2025. Guided by Articles 25(c), 50(1) and 159(2)(d) of the Constitution, I am persuaded that sufficient cause has been demonstrated to justify the reopening of the appeal. 57.As Regard the Appellant’s contention that the application(s) were filed after an inordinate delay. I am unable to agree. The application was filed approximately 3 months after delivery of the judgment. However, the delay must be assessed in light of the surrounding circumstances. This is because, from the foregoing facts, the Respondent only became aware of the judgment when the Appellant moved to enforce it, and not when the Court rendered it having sufficiently demonstrated to this Court that it had no knowledge of the proceedings having not been served. 58.Consequently, I find that the interests of justice would be better served by setting aside the judgment delivered on 29th August, 2025, and affording the Respondent an opportunity to participate in the appeal proceedings, so that the dispute may be determined on its merits after hearing both parties. Whether the Respondent is entitled to the orders of stay of execution and injunctive relief sought. 59.Having found that the appeal ought to be reopened and the judgment delivered on 29th August, 2025, should be set aside, the question of stay of execution and injunctive relief becomes largely consequential and falls for consideration. 60.The Respondent’s second application dated 1st December, 2025, was precipitated by the Appellant's notice dated 26th November, 2025, seeking recovery of Kshs. 18,550,216.00/- and initiating recovery measures. The Respondent argues that enforcement of that demand would render the pending proceedings nugatory and occasion substantial prejudice and undermine the very purpose of reopening the appeal. 61.The Appellant on the other hand, maintains that the Respondent has failed to satisfy the requirements for the grant of stay under Order 42, rule 6 of the Civil Procedure Rules and for the grant of an injunctive relief under the principles set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358. 62.Ordinarily, an Applicant seeking an order of stay of execution is required to demonstrate that it stands to suffer substantial loss if the order is not granted, that the application has been made without unreasonable delay, and that it is prepared to furnish security for the due performance of the decree. However, the circumstances of the present case are not ordinary. This Court has already found that sufficient cause has been established to warrant the reopening of the appeal and the setting aside of the judgment that forms the foundation of the impugned enforcement measures. Once that judgment is set aside, the legal basis upon which the enforcement process was founded is effectively removed pending the rehearing and determination of the appeal. 63.Once the judgment of this Court is set aside, the effect is that the decision of the Tax Appeals Tribunal, which had been rendered in favour of the Respondent, remains the operative decision pending the rehearing of the appeal. Consequently, there is no subsisting judgment or decree of this Court capable of execution. The issue is therefore not one of granting stay against an existing executable judgment but of preserving the legal position obtaining after the setting aside of the impugned judgment. 64.As regards costs, although costs ordinarily follow the event, the present applications arose principally from the disputed issue of service and have resulted in the reopening of the appeal to facilitate a determination on the merits after hearing both parties. In those circumstances, I consider it appropriate to direct that the costs of the applications shall be in the cause. The same shall abide the outcome of the appeal. 65.The preservation of the status quo therefore becomes necessary to ensure that the rehearing is not rendered illusory. I am therefore satisfied that the interests of justice require maintaining the interim orders already granted and the suspension of enforcement measures pending the rehearing and determination of the appeal. 66.Further, the Appellant will suffer no irreparable loss, since if the appeal is reopened, heard and it is successful, it will still collect its tax from the Respondent. On the other hand, given the tax amount involved, the balance of convenience tilts towards staying the execution as the sum will definitely impact the Respondent’s operations. 67.The upshot is that the Respondent has established sufficient cause for the reopening of the appeal and the setting aside of the judgment. The appeal shall be heard afresh upon directions to be issued by the Court. 68.Costs ordinarily follow the event. However, the dispute herein has arisen largely from the contested issue of service and the Court has exercised its discretion principally to facilitate determination of the dispute on the merits. In the circumstances, I consider it appropriate that the costs of the two applications shall abide the outcome of the appeal. 69.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 10TH DAY OF JULY, 2026.RHODA RUTTOJUDGECourt Assistant: WabwireMr. Edgar Isutsa for the AppellantNo appearance by the Respondent