https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10784

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **INCOME TAX APPEAL NO E204 OF 2025** COMMISSIONER OF DOMESTIC TAXES……………..…….……APPLICANT VERSUS PETER K. MUNGA…………………….………………………….RESPONDENT **RULING** 1. Before the Court is a Notice of Motion application dated 30th July 2025 filed pursuant to Rule 4 of Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015, Section 32 of the Tax Appeals Tribunal Act and Article 159 of the Constitution of Kenya, 2010. The applicant seeks orders of extension of time within which to file a Memorandum of Appeal against the Judgment of the Tax Appeals Tribunal delivered on 2nd May 2025 in **Tax Appeals Tribunal Number E854 of 2024.** The applicant prays to have the Memorandum of Appeal deemed as duly filed and served. It also prays for leave to file additional documents. 2. The Motion is premised on the grounds set out on the face of it, and the supporting affidavit sworn on 30th July 2025 by Audrey Nzia, the applicant’s Advocate. She averred that Judgment was delivered on 2nd May 2025, but she inadvertently failed to lodge the Memorandum of Appeal on time, due to pressure of work in the just concluded RRI exercise. She averred that it was an honest oversight and her mistake as Counsel should not be visited on the client. 3. She stated that the law provides a timeframe of 30 days to lodge an Appeal, and that she filed a Notice of Appeal on 30th May 2025. She averred that she was required to file a Memorandum of Appeal by 30th June 2025. Ms Nzia deposed that under Rule 3 of the Tax Appeals Tribunal (Appeals to High Court) Rules 2015, she had annexed a Memorandum of Appeal and had moved to Court with haste to regularize the application. 4. She faulted the Tribunal for delving into issues not raised by either of the parties. She stated that the applicant was prejudiced by the Tribunal’s decision to address itself on the issue of time barred assessment, which was not pleaded in the respondent’s Memorandum of Appeal and statement of facts. She stated that she seeks to introduce new documents to defend against the new raised issues. She argued that this Court has unfettered discretion in granting leave to appeal out of time and to admit new documents. 5. She maintained that the delay was not deliberate and that the intended Appeal is arguable with high chances of success. She urged this Court to consider the interest of justice, take into account the taxes which are of colossal amounts and allow the application. 6. The application was opposed vide a replying affidavit sworn on 4th February 2026 by Mr. Peter Kahara Munga. He averred that the reasons for delay in the filing of the appeal is not satisfactory. He stated that the applicant is a public entity which operates with work plans and it ought to have planned for the RRI exercise and taken account of its other activities. He stated that he stands to suffer prejudice due to the applicant’s failure to plan. 7. He argued that the Judgment of the Tax Appeals Tribunal was self- executing and that the applicant was in contempt of Court for having failed to recompute the tax assessment. He stated that the applicant has not applied for stay of the said Judgment and he should not be granted audience. He urged this Court to dismiss the application with costs. 8. The application was canvassed by way of written submissions. The applicant filed its submissions dated 13th February 2026 through its Advocate Audrey Nzia. The respondent filed submissions dated 12th January 2026 through the law firm of Mucheru Law LLP Advocates. 9. Ms Nzia, learned Counsel of the applicant, submitted on the issue of whether the applicant should be granted leave to file an appeal out of time. She cited the case of **Mansur Jiwani (Sued Wrongly as T/A Computer City) v Ovidian Advertising & Design Ltd [2002]** eKLR which quoted an earlier decision of **Leo Sila Mutiso V. Rose Hellen Wangari Mwangi Civil Application No. NAI 251 of 1997 (unreported),** in which the Court of Appeal gave four issues to consider while granting extension of time, being the length of delay, reason for the delay, chances of the appeal succeeding and the degree of prejudice. 10. On the first issue of the length of delay, Ms Nzia quoted the case of [**Andrew Kiplangat Chemaringo v Paul Kipkorir Kibet** [2018] eKLR](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/701), which stated that the law does not set out any minimum or maximum period of delay. She also cited the cases of **Utalii Transport Company Limited & 3 others v Nic Bank Limited & another** [2014]eKLR and **Maina & another v Cheye** [2024] KEHC 6839 (KLR), which addressed the issue of inordinate delay. Counsel also cited the case of **Charles Githinji Muigwa v Charles Kiiru Karanja** [2016] KEHC 6349 (KLR), which held that the purpose of discretion is to ensure justice is done without a party feeling that he has been denied the chance to present its case. 11. She stated that her mistakes as Counsel should not be visited upon her client. She relied on the cases of **Vishva Stone Suppliers Company Ltd v RSR Stone** [2006] Limited [2020] KECA 361(KLR), **Jeremiah Meeme & another v Peter Muriungi Arimi** [2015] KEHC 1752 KLR and **Philip Keipto Chemwolo & another v Augustine Kubende** [1986] KECA 87 (KLR), to support her argument. 12. Ms Nzia stated that the intended appeal has good chance of success as shown in the Memorandum of Appeal as the applicant intends to challenge the partial setting aside of its assessment, which involves a substantial sum of money without giving the parties a chance to be heard, which is the cornerstone of the rule of law. She submitted that the degree of prejudice should entail balancing the competing interests of the parties and the injustice to the applicant in denying the extension of time against the prejudice of the respondent in granting the extension. She urged this Court to allow the application to file an appeal out of time. 13. Mr. Gathu, learned Counsel for the respondent, submitted that the main issue for determination is whether the applicant has laid out adequate grounds to justify extension of time to lodge its appeal. He stated that the law on extension of time is settled under Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rule, 2015, which requires a Memorandum of Appeal to be filed within 30 days after service of the Notice of Appeal. He cited the case of **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others** [2014] eKLR, which dealt with extension of time, that it is not of right but it is granted at the discretion of the Court. 14. He submitted that the applicant was required to file its Memorandum of Appeal by 30th June 2025, but was filed it on 30th July 2025, exactly after one month. Counsel also cited the case of **Utalii Transport Company Limited & 3 others v Nic Bank Limited & another** (supra), which stated that inordinate delay is inexcusable and undermines administration of justice. He indicated that the applicant stated that the delay was caused by exigencies of work occasioned by the RRI exercise, and an honest oversight of the Counsel, which are vague and unsupported by evidence. He cited the case of **Bi Mach Engineers Ltd v James Kahoro Mwangi** [2011] eKLR, where the Court of Appeal held that mistakes of Counsel do not automatically entitle a party to extension of time unless special circumstances have been demonstrated. He also cited the case of **MSA v KMKA** (Civil Application E123 of 2024) [2024] KECA 1222 (KLR), which held that vague explanations cannot justify delay. 15. Mr. Gathu stated that the applicant has not provided specific grounds that demonstrate *bona fide* issues. He relied on the case of **Kenya Medical Lab Technicians & Technologists Board v Prime Communications Ltd** [2024] eKLR, which held that arguability requires at least one *bonafide* ground but mere assertions cannot justify extension of time. He stated that if the Court allows the application, it will be prejudicial to the respondent by undermining certainty in tax administration. He cited the case of **Anti/Counterfeit Authority v Francis John Wanyange & others** Civil Application No. 147 of 2019, in which the Court of Appeal held that prejudice to the respondent must be considered before granting extension. 16. Mr. Gathu stated that although the applicant placed reliance on Article 159 (2)(d) of the Constitution, the Supreme Court in the case of **Nicholas Kiptoo Arap Salat** (supra), held that the said provisions cannot be used to oust mandatory statutory timelines, as they are not mere technicalities, but go to administration of justice. 17. Counsel asserted that the applicant has not demonstrated sufficient cause for extension of time, the delay was not explained and that extension of time would be prejudicial to the respondent. He urged this Court to dismiss the application dated 30th July 2025. **ANALYSIS AND DETERMINATION.** 1. I have considered the Notice of Motion, the supporting affidavit, the replying affidavit and the submissions filed by both Counsel. The issue for determination is whether the Court should grant extension of time to the applicant to file a Memorandum of Appeal. 2. The instant application was filed pursuant to Section 32(1) of the Tax Appeals Tribunal Act, 2013, which provides for the filing of a Notice of Appeal within 30 days of delivery of judgment. It states as follows- ***32(1) A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party.*** 1. The procedure under the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015, dictate that the Memorandum of Appeal should be filed within 30 days of service of the Notice of Appeal, pursuant to Rule 3 which states that- ***3.Time for filing of memorandum of appeal*** ***The appellant shall, within thirty days, after the date of service of a notice of appeal under section 32(1), file a memorandum of appeal with the Registrar and serve a copy on the respondent.*** 1. Having failed to file its Memorandum of Appeal within the timelines provided in law, the applicant moved the Court through Rule 4 of Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015, which provides as follows- ***4. Extension of time for filing memorandum of appeal*** ***The Court may extend the time specified in rule 3 if the Court is satisfied that owing to absence from Kenya, sickness, or other reasonable cause, the appellant was unable to file the memorandum of appeal within the period and that there has been no unreasonable delay on the part of the appellant.*** 1. It is clear from a reading of Rules 3 and 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015, that a Memorandum of Appeal must be filed within 30 days from the date of service of the Notice of Appeal. When it is not filed within the said timelines, then Rule 4 comes to play, as it makes provision for extension of time for filing of an Appeal. The law allows extension of time only on condition of an applicant’s absence from Kenya, sickness or reasonable cause. In this case, the condition that applies is if the applicant has given reasonable cause for extension of time. 2. The applicant’s Counsel attributed the applicant’s non-compliance to the RRI exercise that its Advocate was engaged in, hence she lost sight of the time within which the Memorandum of Appeal was to be filed. She attributes the foregoing to mistake of Counsel, which should not be visited on the applicant. 3. This Court finds that the reasons given are not substantive and persuasive, as the applicant ought to have taken adequate measures to comply with the law regardless of the RRI exercise. Additionally, this Court has not been provided with any evidence to support the applicant’s Counsel’s involvement in the said RRI, and even if it had been availed, that would not have excused the Advocate from the duty of keeping a tab on all her pending work. The explanation given, in my considered view, cannot be said to reasonable cause as per the provisions of Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015. 4. This Court is guided by the decision of the Supreme Court of Kenya in the case of **Nicholas Kiptoo Arap Salat v IEBC and 7 others** (supra), which provided guidelines for the Courts to follow when making decisions on whether or not to grant extension of time. The said Court stated as follows- 5. ***A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;*** 6. ***Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;*** 7. ***Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;*** 8. ***Whether there will be any prejudice suffered by the respondents if the extension is granted;*** 9. ***Whether the application has been brought without undue delay; and*** 10. ***Whether in certain cases, like election petitions, public interest should be a consideration for extending time.*** 11. Guided by the above guidelines, it is evident that the applicant herein did not provide sufficient reasons for the delay in filing its Memorandum of Appeal. The applicant’s Advocate who alleged to have been involved in an RRI exercise, did not exhibit any documentation to prove her engagement in the said RRI, and the duration of time the RR1 took, with the aim of establishing that the deadline fell within that period. Further, the fact that the application was brought 30 days after the deadline shows that there was undue delay. 12. The applicant relied on the provisions of Article 159(2)(d) of the Constitution, and urged this Court to disregard procedural technicalities. This Court is of the considered view that failing to comply with mandatory timelines cannot be deemed as a procedural technicality as it goes into the substantive justice. See the case of **Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited)** [2014] eKLR, where the Judges held that- **“*Article 159 (2) (d) of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***which provides that justice shall be administered without undue regard to procedural technicalities. It does not avail them. We are content to state that the constitutional provision is not meant to whitewash every procedural failing and it is not meant to place procedural rules at naught. In fact, what has befallen the respondents is proof, if any were needed, that there is great utility in complying with the rules of procedure. Such compliance is neither anathema nor antithetical to the attainment of substantive justice. As has been said before, the rules serve as handmaidens of the lady Justice.”*** 1. It is this Court’s considered view that the reasons for delay are not substantive enough to warrant this Court to exercise its discretion in the applicant’s favour. Article 159(2)(d) of the Constitution cannot come to the applicant’s rescue. 2. This Court finds that the application is not merited. It is dismissed with costs to the respondent.. **DATED, SIGNED and DELIVERED at KIAMBU on this 26TH day of JUNE 2026. Ruling delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:** Ms Nzisi for the applicant Mr. Gathu for the respondent Ms Julia – Court Assistant.