https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/225

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E358/2026 DREAMSVIEW INVESTMENTS LIMITED VS KENYA REVENUE AUTHORITY RULING 1. The Applicant moved this Tribunal through a Notice of Motion filed 26 th March 2026 and supported by affidavit sworn by ABDALLAH GAYOYE HIRIBAE who described himself as the director of the applicant. The Applicant sought the following Orders: 1. That the Honourable Tribunal be pleased to extend the time to file Notice of Appeal against the objection decision; 2. That the Honourable Tribunal grant orders to deem the Appellant's/Applicant's Notice of Appeal and other supporting documents set out, under Section 13(2) of the Tax Appeals Tribunal Act as duly filed and admit the appeal as having been filed within time. 3. That the costs of and incidental to this Application be cost in the Appeal. 4. That Any other orders that this Honourable Tribunal may deem just and expedient to grant in the circumstances. # Grounds for the Application 1. The Application is based on the grounds: 2. That on 23rd November 2023, the Applicant received an Assessment from the Respondent dated 6th October 2023; 3. That the Applicant runs a general supplies shop company based in Lamu County and had made various business with the county government and KERRA which led to the Assessment and the current dispute. 4. That at the material time being the director of the Appellant was seeking treatment; 5. That the Assessment was based on what the Respondent indicated was the analysis of the banking and the IFMIS data. 6. That the Respondent in issuing the assessment never allowed any expenses and also failed to make into account inter-bank transactions, personal deposits and other non-sale deposit in the account. 7. That on various dates 16th February 2024 the Applicant objected to the assessment through iTax system to the and further informed the Respondent that the Applicant’s director was seeking treatment and was unable to respond to the Respondent’s email. 8. That on the same date the Applicant objected in the i-Tax system to stop the accrual of penalties and interest even as the Applicant’s objection was being considered by the Respondent; 9. That on 1 st March 2024 the Respondent issued an objection decision disallowing the objection and further confirming the taxes to be due and payable; 10. That the Respondent failed to take into account that the director of the Appellant and being unwell was unable to file the objection timely; 11. That the Appellant was required to file a Notice of Appeal by 6th February 2024 and a Memorandum of Appeal by 13th February, 2024; 12. That due to illness, the Applicant has not been able to raise the legal fees and the court filing fees to instruct a lawyer to file the current Appeal as the business is currently not operational due to a non- serviced loan. 13. That the delay of to file a Notice of Appeal and subsequent delays to file a Memorandum of Appeal is not inordinate. 14. That the delay in filling the memorandum of appeal has been mainly due to illness and the lack of funds to procure experts to pursue the Appeal in the matter. 15. That the Applicant having brought the Application soonest possible time there is no inordinate delay. 16. That the Applicant is seeking an extension of time within which to file the appeal and /or the Notice of Appeal, the Memorandum of Appeal and Record of Appeal. 17. That the dispute has also been referred to the Applicant dispute resolution to enable it to be settled amicable and promptly. 18. That it is the interest of justice that the Applicant be granted an opportunity to be heard on merits on its Appeal herein as the delay in filing the same was due to lack of notice of the same. 19. That the intended Appeal is arguable, has overwhelming chances of success and hence the Applicant needs to be given the opportunity to prosecute it on its merit. 1. That if the intended Appeal is not heard on its merits the applicant is likely to suffer as the Respondent would proceed to take enforcement action for the said taxes which are very high and without considering the explanation of the commitment of the appellant in payment of taxes. 2. That it is the interest of justice, good governance and public interest that the Application be heard and determined on priority basis and the Applicant's Appeal herein be allowed to be heard on its merits. 3. That no prejudice will be suffered by the Respondent if the orders sought herein are allowed. 4. That the Honourable Tribunal has jurisdiction to grant the orders sought. 5. The Appellant did not file written submissions. # Response to the Application 1. In response to the application, the Respondent filed Notice of Preliminary Objection dated 9th April 2024 on the grounds: 1. That the Appellant’s Application is res judicata within the meaning of Section 7 of the Civil Procedure Act, the Appellant having previously filed similar applications seeking leave to file an Appeal out of time which were heard and determined by this Honourable Tribunal. 2. That the said previous applications were premised on the same tax assessments and Objection Decision apparently issued by the Respondent on 7th December 2023. 3. That the Appellant subsequently filed another application seeking similar orders which was opposed by the Respondent and determined by this Honourable Tribunal, which held that it was functus officio in respect of the matter. * 1. That the present Application raises the same issue between the same parties, namely leave to file an Appeal out of time against the same mentioned Objection Decision dated 7th December 2023, which issue has already been conclusively determined by this Honourable Tribunal. 2. That by virtue of the previous rulings delivered by this Honourable Tribunal, the Tribunal is functus officio and therefore lacks jurisdiction to entertain the present Application. 3. That the filing of the present Application constitutes a gross abuse of the process of this Honourable Tribunal, as it seeks to re-litigate matters that have already been conclusively determined. 4. That the Notice of Motion filed by the Appellant is fatally defective for being undated. 5. That the supporting affidavit filed in support of the Application is not commissioned before a Commissioner for Oaths, rendering the same incompetent and devoid of evidentiary value. 6. That the Application is therefore incompetent, frivolous, vexatious and an abuse of the process of this Honourable Tribunal. 1. The Respondent also filed written submissions dated 9th April 2026 wherein it submitted that the Application is res- judicata as it has been heard and determined by this Tribunal. it therefore submitted that the Tribunal is functus officio in relation to this matter. 2. It cited the case of **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others** wherein it was held that res judicata applies where the matter in issue is directly and substantially the same; the parties are the same, and the matter has been heard and finally determined by a competent court. # It relied on the cases of Geoffrey M. Asanyo & 3 Others v The Attorney General Petition Number 7 of 2019; and Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR to submit that functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. 1. It also submitted that the Application is fatally defective on the basis that the pleadings are unsigned and the supporting affidavit not commissioned. It therefore, submitted that the Application constitutes an abuse of the Tribunal process. 2. It cited the case of **Omondi & Another v Ngao Credit Limited (2025)** wherein the High Court held that a supporting affidavit not commissioned by an advocate in breach of Sections 4 and 5 of the Oaths and Statutory Declarations Act is "incurably defective." 1. The Respondent therefore prayed that the application be struck out. # Analysis and Findings 1. **Whether the application is valid** 2. One of the grounds of the preliminary objection is that the Notice of Motion is unsigned, and undated while the supporting affidavit is not commissioned neither is it signed. 3. The Tribunal examined the Notice of Motion and noted that indeed the Applicant did not sign it neither is it dated. The Tribunal also examined the supporting affidavit and noted that it is not commissioned neither did Abdallah Gayoye Hiribae sign it. The pleadings were also not dated. 4. In the case of **Regina Kavenya Mutuku & 3 others v United Insurance Co Ltd [2002] eKLR** the court held as follows on unsigned pleadings: ‘‘*… I am in agreement … that an unsigned pleading cannot be valid in law. To my mind, it is the signature of the appropriate person on a* *pleading which authenticates the same… An unauthenticated document is not a pleading of anybody. It is a nullity. In my opinion where a pleading has been amended and the same has been struck out for whatever reason, the party affected has simply no valid pleading left on record… I find that the defendant has no valid defence on record.”* 1. In the case of **John Ongeri Mariaria & 2 Others v Paul Matundura Civil Application No. Nai. 301 of 2003 [2004] 2 EA 163** the Court held as follows regarding unsigned pleadings: “*Legal business can no longer be handled in such sloppy and careless manner. Some clients must learn at their costs that the consequences of careless and leisurely approach to work by the advocates must fall on their shoulders...Whenever a solicitor by his inexcusable delay deprives a client of his cause of action, his client can claim damages against him...Whereas it is true that the Court has unfettered, like all judicial discretion must be exercised upon reason not capriciously or sympathy alone...Justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent.”* 1. It is vital to note that the consequences attendant to unsigned pleadings have been deliberated upon in Kenya’s jurisprudence after the enactment of Constitution of Kenya 2010. In the case of **Andai & another v Ojera &** **another (Environment & Land Case 3 of 2020) [2024] KEELC 1241 (KLR) (7 March 2024) (Ruling)** the Court stated as follows regarding unsigned pleadings: *‘‘16.* ***For avoidance of doubt, I have perused the Notice of Motion dated 10th August, 2023 and find that indeed the same is unsigned****. The drafters of this provision of law couched it in mandatory terms with the intent to ensure that there is ownership of the contents of pleadings either by an advocate, a recognized agent or the party to the suit. Pleadings are the bedrock of any claim brought before a court for determination.* ***17. In my view, an unsigned pleading is a substantive issue that goes to the root of the pleadings and, cannot be cured by the “oxygen principle” or Article 159 (2) (d) of the Constitution.*** *The* *Superior courts have held on numerous decisions that unsigned pleadings are a nullity. In Regina Kavenya Mutuku & 3 Others vs. United Insurance Company Limited Nairobi (Milimani) HCCC No. 1994 of 2000 [2002] 1 KLR 250, Justice A. Ringera stated; “An unsigned pleading has no validity in law as it is the signature of the appropriate person on the pleading which authenticates the same and an unauthenticated document is not a pleading of anybody. It is a nullity.”’’* 1. In the case of **Lucy Ougo & 3 others v County Government of Nairobi & another [2021] KEELC 2580 (KLR)** the Court stated as follows: ***‘‘****9. To set the record straight on whether the pleadings in the court file are signed or not, I do confirm the plaintiffs’ plaint and motion both dated 24/07/2019 are both unsigned, which is contrary to* Order 2, Rule 16 of the Civil Procedure Rules*. This provision of law is couched in mandatory terms and the intent was to ensure that there is ownership of the contents of pleadings either by an advocate of a party, a recognised agent or the party to the suit. The plaintiffs have sought refuge in Article* 159 (2) (d) *of the Constitution. In my view an unsigned pleading is a substantive issue that goes to the root of the pleadings and, cannot be cured by the “oxygen principle”. The courts have held that unsigned* *pleadings are a nullity. In the case of* **Vipin Maganlal Shah & another v Investment & Mortgages Bank Limited & 2 others [2001] eKLR** *the Court of Appeal was of the following view: -* “…If a plaint is not signed either by the plaintiff in person or his recognized agent or his advocate, what is the use of requiring that it contains an averment by the plaintiff that there is no other suit pending and so on? If the plaint is not signed as required by Order VI rule 14, these other requirements clearly become meaningless. Whatever may be the position in India or even in England, the position in Kenya seems to us to be that a party who files an unsigned plaint runs a very grave risk of having that plaint struck out as not complying with the law…”’’ 1. The High Court in **Bonface Ochieng Oriaro v Peninah Atieno [2013] KEHC 412 (KLR)** had a different view. It held as follows regarding unsigned pleadings: *‘‘…This authority concerned unsigned pleadings also. The court of appeal stated that the position in Kenya is that an unsigned pleading can lead to dismissal of a suit. The Court of Appeal held that position* *despite its analysis of positions in other jurisdictions which showed an opposite view.* *I have considered all what was laid before me. I would hesitate very much to dismiss a suit on such a technicality particularly where, as in this case, it is explained well how the mistake arose. The authority availed by the defendant's side espouse a rigidity that would cause an injustice. It is an authority that was decided long ago before the new Constitutional dispensation. It would be against the spirit of article 159(d) of our constitution to hold that procedural omission as enough to warrant dismissal of the suit herein. I apprehend that that would also offend the letter of Section 19 of Environment and Land COURT ACT which de-emphasizes this Court's adherence to technicalities of procedure and Rules of Evidence. It appears to me that this is the same spirit embraced by Sections 1A, 1B and 3A of Civil Procedure Act (Cap 21).’’* 1. This Tribunal has previously determined in the case of **Jarika County Lodge Limited v Commissioner of Domestic Taxes (Tax Appeal 1529 of 2022) [2024] KETAT 447 (KLR) (5 April 2024) (Judgment),** this Tribunal held as follows at paragraphs 78 and 79 of the judgment: *‘‘78. A document is not valid until it is signed. Signature indicates that the person signing is ready to be legally bound by the signed document. Needless to stated that unsigned document cannot be enforced.* *79. The Tribunal finds that the Appellant’s pleadings are incompetent as they did not comply with Rules 4(1) (a) and 5(1) of the Tax Appeals Tribunals (Procedure) Rules, 2015. Consequently, the Tribunal finds and holds that the Appellant’s pleading are incompetent and are available for striking out.’’* 1. In this particular case, the Notice of Motion is not signed nor dated. The supporting affidavit is also not signed. Without a signature, there is no evidence that the applicant is ready to be bound by its pleadings. 2. The Appellant also filed an affidavit that was not commissioned. It should be recalled that Rule 10(2) of the Tax Appeals Tribunals (Procedure) Rules, 2015 mandates that applications for extension of time must be accompanied by an affidavit. It provides as follows: *10(2) An application for extension of time referred to in rule 10(1) shall be—* * 1. *supported by an affidavit stating reasons why the applicant was unable to submit the documents in time.* 1. Section 5 of the Oaths and Statutory Declarations Act, Cap 15 provides as follows:- *5.Particulars to be stated in jurat or attestation clause every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.* 1. Further, Section 8 of the Oaths and Statutory Declarations Act, Cap 15 provides as follows: *8.Power to take declarations* *A magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.* 1. In **Re MWO (Minor) [2021] eKLR** the court stated as follows at paragraphs 38 to 41 with regard to a validity of an Affidavit:- 2. *It is a legal requirement that an Affidavit be commissioned by either a Magistrate, a Commissioner of Oaths or by a Notary Public. An Affidavit is a sworn statement which contains matters of evidence deponed on oath and as such legal consequences such as perjury would attend if one is found to have sworn a false affidavit. Therefore, an Affidavit must be executed on oath by the deponent. An Affidavit which has not been properly commissioned is at best a mere signed statement of facts.* 3. *It is the commissioning of the Affidavit by an authorized officer which elevates the signed statement to the status of an Affidavit. Therefore, commissioning of the document is a crucial step without which the statement cannot be deemed to be an Affidavit. Failure to commission an Affidavit cannot be dismissed as a mere technicality and is an omission which cannot be ignored and/or overlooked by the court.* 4. *In the circumstances the Affidavit dated 14th June 2019, Annexture EWW’2’ which appears at Page 9 of the Record of Appeal is not a legal document and cannot be taken as proof that service actually occurred.* 5. *In the premises based on the above I do find that service was not properly effected upon the Appellant. As such, the orders made by the trial court on 17th June 2019 were made without proper notice being served upon the Appellant. In the circumstances, such orders are null and void and are hereby set aside.”* 6. In the case of **Pius Njogu Kathuri -vs- Joseph Kiragu Muthura & 3 others (2018) eKLR** it was held as follows: *“.….I agree with the holding as affidavits which are not commissioned by a commissioner of Oaths appointed as provided by the Oaths and Statutory Declarations Act are not affidavits but mere statements…..”* 1. In the case of **Ndolo (Suing as the Personal Legal Representative of the Estate of Ndolo Mumo (Deceased)) v Wanzuu & 4 others [2025] KEELC 1387 (KLR),** the Court observed thus: *‘‘While dealing with the second issue, I found that as the “replying affidavit” was not commissioned, the same ought to be struck out. I proceeded to strike it out. The import of this means that the Applicant’s application remained unopposed.’’* 1. It should be recalled that under Section 13(4) of the Tax Procedures Act Cap 469A, an application for extension of time can only 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. The Applicant has to demonstrate by adducing evidence to prove that its director was taken ill. If it had adduced evidence and annexed the same to affidavit without commissioning, the documents would not have been admitted in evidence. In absence of evidence the application for extension of time cannot succeed. 1. The Application under consideration is therefore invalid. # Whether the application is res-judicata 1. The Respondent contended that the application is *res judicata*. Having established that the application is invalid, this issue is rendered moot. # Disposition 1. Considering the foregoing, the Tribunal finds and holds that the Application is invalid and makes the following orders: 1. Notice of Motion filed on 26th March 2026 be and is hereby struck out; 2. No orders as to costs. 2. It is so ordered. **DATED** and **DELIVERED** at **NAIROBI** this 19TH DAY OF MAY **2026** SIGNED BY/FOR: HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU **★ TH E JUDICIAR Y O F KENY A ★** **HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-05-19 16:45:26