https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11690

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **INCOMЕ ТАХ АPPEAL NO E194 OF 2025** **COMMISSIONER OF LEGAL SERVICES &** **BOARD COORDINATION…………………………….……………APPELLANT** **-VERSUS-** **DIOCESE OF NYERI TRUSTEES…………………………………RESPONDENT** **RULING** 1. The Applicant *(who is the Respondent in the main Appeal)* filed the Notice of Motion dated 1st September, 2025 seeking the following orders: 2. *The Notice of Appeal filed on 10th June 2025 and the Memorandum of Appeal filed on 18th July 2025 be struck out.* 3. *Costs of this application be provided for.* 4. The Application was supported by the Affidavit of **Charles Gitonga** who stated that the Tax Appeals Tribunal delivered its judgment in ***TAT E1147 of 2024, Diocese of Nyeri Trustees v Commissioner, Legal Services and Board Coordination*** on 9th May, 2025. The Appellant's Notice of Appeal, filed on 10th June, 2025, was lodged one day outside the 30-day period prescribed under section 32(1) of the Tax Appeals Tribunal Act. This was without the leave of the Court. Further, the Memorandum of Appeal, filed on 18th July, 2025 and served on 21st July, 2025, was also filed and served outside the 30-day timeline under **Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules**. Consequently, in the absence of a valid Notice and Memorandum of Appeal, this Court lacks jurisdiction to entertain the appeal, and it should therefore be struck out with costs. 5. In response, the Respondent *(who is the Appellant in the main Appeal)* filed the Replying Affidavit sworn on 24th September, 2025. The Appellant stated that following the Tax Appeals Tribunal's judgment delivered on 9th May, 2025 in Diocese of Nyeri Trustees v Commissioner of Legal Services & Board Co-ordination, TAT Appeal No. E1147 of 2024, it duly filed a Notice of Appeal on 10th June, 2025 and a Memorandum of Appeal on 18th July, 2025. The Appellant contends that the right of appeal is governed by both the Tax Appeals Tribunal Act and the Tax Procedures Act. That the applicable timelines must be read together with the 2024 amendment **to Section 77(2) of the Tax Procedures Act**, which excludes Saturdays, Sundays, and public holidays when computing time for lodging appeals. Consequently, the Appellant maintains that both the Notice and Memorandum of Appeal were filed within the prescribed statutory period, rendering leave to file out of time unnecessary. **Issues for determination** 1. The Court has carefully considered the Application, the response and the submissions and the single issue for determination is: 2. *Whether the Appellant’s* *Notice of Appeal and Memorandum of Appeal dated 18th July, 2025 were filed within the prescribed statutory timelines.* **Analysis** 1. On one hand, the Applicant submitted that the Notice of Appeal filed on 10th June 2025 and the Memorandum of Appeal filed on 18th July, 2025 were both filed out of time and without leave of the court. 2. On the other hand, the Appellant contended that its Memorandum of Appeal was filed within the statutory timeline. Although 38 calendar days elapsed between the filing of the Notice of Appeal on 10th June, 2025 and the Memorandum of Appeal on 18th July, 2025, the Appellant argued that, pursuant to **Section 77(2) of the Tax Procedures Act** as amended, Saturdays and Sundays are excluded from the computation of time. Accordingly, only 28 chargeable days had elapsed, placing the filing two days within the prescribed 30-day period and rendering the Respondent's objection that the appeal was filed out of time without merit. 3. **Section 32 of the Tax Appeals Tribunal Act** provides that: ***“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. Further, **Section 53 of the Tax Procedures Act** provides that: ***“A party to proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in relation to an appealable decision may, within thirty days of being notified of the decision or within such further period as the High Court may allow, appeal the decision to the High Court in accordance with the provisions of the Tax Appeals Tribunal Act.”*** 1. Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules provides that: ***“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. It is undisputed that judgment was delivered by the Tax Appeals Tribunal on 9th May, 2025. The Court also notes that S**ection 77(2) of the Tax Procedures Act** as amended by the **Tax Procedures (Amendment) Act, 2024** excludes Saturdays, Sundays and public holidays in the computation of the timeline for lodging an appeal. It provides as follows: ***“2) In computing the period for the lodgement of an objection to the Commissioner under section 51, an appeal to Tax Appeals Tribunal under section 52, an appeal to the High Court under section 53 or an appeal to the Court of Appeal under section 54, the computation shall not include Saturdays, Sundays or public holidays.”*** 1. In computing the days from 9th May, 2025 when the Appeal ought to have been lodged, the Court takes into consideration that Saturdays, Sundays and public holidays are excluded in the computation of the timeline for lodging an appeal. The Court finds that the Notice of Appeal and Memorandum of Appeal were filed within the prescribed statutory timelines. 2. In [**Mount Kenya Bottlers Ltd & 3 others v Attorney General & 3 others [2019] KECA 500 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/500/eng%402019-07-19) the Court of Appeal expressed itself as follows as regard interpretation of tax statutes: ***“However, when it comes to interpretation of tax legislation, the statute must be looked at using slightly different lenses. With regard to tax legislation, the language imposing the tax must receive a strict construction. Judge Rowlett in his decision in Cape Brandy Syndicate v I.R. Commissioners [1921] 1KB (cited by the appellants), expressed the common law position in this area when he stated;*** ***‘…in a taxing Act one has to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used'.*”** 1. The Application is hereby dismissed. 2. As to costs, the same lie at the discretion of the Court and ordinarily follow the event. The Order that commends itself to the Court is that there will be no orders as to costs. **Determination** 1. The Court makes the following orders in relation to the Applicant’s application by way of a Notice of Motion dated 1st September, 2025: 2. *The Application is HEREBY dismissed for lack of merit.* 3. *There will be no orders as to costs.* 4. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 23RD DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Miss Mulongo for the Appellant. Miss Achieng holding brief for Mr. Gitonga for the Respondent. Mr. John Paul - Court Assistant.