[2025] KETAT 135 (KLR)

Dreamsview Investments Limited v Commissioner of Domestic Taxes (Tax Appeal E740 of 2024) [2025] KETAT 135 (KLR) (21 February 2025) (Ruling)

Neutral citation: [2025] KETAT 135 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E740 of 2024

M Makau, Chair, EN Njeru & B Gitari, Members

February 21, 2025

Between

Dreamsview Investments Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Applicant vide a Notice of Motion dated and filed on 23rd December 2024 which is supported by an Affidavit sworn by Abdalla Gayoye Hiribae a Director of the Applicant, sworn on 23rd December 2024 sought for the following Orders:a.Spent.b.Pending the hearing and determination of this Application interpartes, an injunction be and is hereby issued restraining the Respondent, their agents or anybody acting their authority from enforcing recovery in any manner whatsoever or howsoever of their decision the subject of these proceedings including that dated 16th November 2023;c.The Tribunal be pleased to set aside, vary or review its decision dated and delivered on 6th September 2024 dismissing the Notice of Motion Applciation dated 4th July 2024, allow the same in lieu of the Application filed herewith by extending the time for filing a Notice of Appeal against the Objection Decision by the Respondent and for submitting a Memorandum of Appeal, Statement of Facts, the Appealable decision and such other documents as may be necessary to enable the Tribunal to decide on the Appeal;d.Pending the hearing and determination of this Application and Appeal, an injunction be and is hereby issued restraining the Respondent, their agents or anybody acting on their authority from enforcing recovery in the manner whatsoever or howsoever of their decisions the subject of these proceedings including that dated 16th November 2023;e.The Tribunal be pleased to refer the dispute between the parties herein to be settled out of the Tribunal; and,f.The Tribunal be pleased to make any other order that it shall deem fit and just in the circumstances.

2. The application is premised on the following grounds, that;a.The Respondent’s agents have been summoning the Appellant’s directors with threats to charge them with various criminal offences.b.There is a likelihood of success of the subject application therefore warranting an interim measure of protection.c.The Tribunal on 6th September 2024 dismissed the Applicant’s application dated 4th July 2024 principally for the reason that the Applicant had not produced documentary evidence in support of the matter set out in the supporting affidavit.d.The failure to produce the subject documents was solely a mistake of the Agent retained to undertake the assignment on behalf of the Applicant, which mistake the Applicant implores the Tribunal not to visit upon the client.e.The Applicant was at all material time under the distinct impression that the matters raised in their applciation had been logically concluded in their favour until the Respondent’s Agents sought to summon its Directors over the same.f.The wife to the Applicant’s director was unwell and has attached a medical report.

3. Upon being served with the application, the Respondent filed its Replying Affidavit sworn by Jackline Nyakio Counsel for the Respondent, sworn on 27th January 2025, raising the following grounds, that;a.The Tribunal having delivered a judgment dismissing the Applicant’s application for extension of time for lack of justification in this matter is therefore functus oficio.b.The Appellant explicitly admitted in paragraphs 8 and 11 of their affidavit that it was the wife of the Appellant’s director, Abdallah Gayoye Hiribae, who was seeking medical treatment.c.In the current application, the Appellant has attached a medical report for one Said Mahanga Hiribae (male), who is a complete stranger to the proceedings.d.The sworn affidavit is from Abdallah Gayoye Hiribae, who deposed that he is the director and in charge of the day-to-day operations of the Appellant. However, there is no explanation or connection provided to justify the inclusion of the medical report of Said Mahanga Hiribae in the current application.e.The medical report attached in the new application raises serious concerns about its credibility. It appears inconsistent with the earlier statements by the Appellant and seems fabricated or incorrect, further undermining the Appellant’s justification for the delay in filing the Appeal.f.By attempting to introduce questionable evidence and re-litigate a matter already decided, the Appellant is abusing the judicial process and undermining the principle of finality of decisions.g.There is no provision of the law that provides for extension of time to file the Notice of Appeal, Memorandum of Appeal and Statement of Facts after the delivery of judgement by the Tribunal.

Parties. Submissions 4. The parties in compliance with the directions by the Tribunal to the effect that the application was to be canvassed by way of written submissions, the Respondent duly filed its written submissions, while the Applicant did not.

5. In opposition to the application, the Respondent submitted that there are three (3) issues for determination, namelyi.Whether the Appellant has proved there was an error apparent on the face of the record to necessitate the Tribunal reviewing its Ruling/Judgement delivered on 6th September 2024;ii.Whether the Tribunal is functus officio in relation to this matter; and,iii.Whether the Applicant’s Evidence is Inconsistent and Fabricated.

6. The Respondent submitted that the Tribunal has no mandate to re-hear a matter already decided unless new and substantial evidence is provided, which the Appellant has failed to do, that such an action would amount to res judicata.

7. The Respondent submitted that once the Tribunal delivered its Ruling/Judgement on 6th September 2024 then it became functus officio and relied on the authorities of Petition Number 7 of 2019 Geoffrey M. Asanyo & 3 Others vs. The Attorney General and Telkom Kenya limited vs. John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR.

8. The Respondent further submitted that the Applicant has made reference to a “mistake” on the part of the Agent but has not indicated any error on the face of the record of the Tribunal’s ruling whatsoever, and relied on the case of Fredrick Outa vs. Jared Odongo Okello & 3 Others SC Petition No. 6 of 2014 (2017) KESC 25 (KLR) which was quoted in the recent case of Kenya Vision 2030 Delivery Board vs Commission on Administrative Justice & 2 others (Petition) (Application) 42 of 2019) [2024] KESC 67 (KLR) (8 November 2024) (Ruling).

9. It submitted that the error referred to is an error on the face of the Judgement and not an error or mistake on the part of any litigant and further stated that the Applicant in this case has not indicated any error on the ruling delivered by the Tribunal on 6th September 2024.

10. The Respondent submitted that. in the Appellant’s earlier application under paragraphs 8 and 11 of the affidavit sworn by Abdallah Gayoye Hiribae, it admitted that it was his wife who was seeking medical treatment. In contrast, the current application it introduced a medical report for one Said Mahanga Hiribae, a male, who is not mentioned in the earlier proceedings and is a complete stranger to this matter.

11. The Respondent submitted that in the affidavit sworn by Abdallah Gayoye Hiribae identifies him as the director responsible for the day-to-day operations of the Appellant. No explanation has been provided to connect Said Mahanga Hiribae to the delay or the Appellant’s affairs.

12. That this discrepancy raises serious doubts about the credibility and authenticity of the medical report, which appears to have been fabricated for the purposes of this application.

Analysis and Findings 13. The Tribunal is enjoined to determine the Applicant’s application seeking orders to set aside, vary or review its decision dated and delivered on 6th September 2024 dismissing the Notice of Motion Applciation dated 4th July 2024.

14. The Tribunal has perused the application dated 4th July 2024 and noted that the same was seeking for leave to lodge an Appeal out of time, which application was disallowed vide the ruling delivered on 6th September 2024. It is this decision that the Applicant now seeks to be set aside, varied or reviewed.

15. The Tribunal noted that the grounds upon which the application dated 4th July 2024 was dismissed, was that the Applicant did not present the evidence in support of the ground it relied upon (“sickness”) and that there were no other reasonable grounds.

16. The Tribunal’s powers to review its decision(s) is provided for under the provisions of Rule 19 of the Tax Appeals Tribunal (Procedure) Rules 2015.

17. In considering such an application, the Applicant is obligated in law to demonstrate, either an error apparent on the face of the record or the discovery of a new and important matter or in any other case any reasonable grounds.

18. From the grounds on the face of the application to the averments contained in the affidavit in support of the instant application, the Applicant has failed to demonstrate any error apparent on the face of the record or the discovery of a new and important matter or in any other case any reasonable grounds.

19. It was the Applicant’s arguments that its former Agent who represented it at the time the application dated 4th July 2024 was lodged, omitted and/or failed to present evidence before the Tribunal, it pleaded an honest and/or excusable mistake, thus stated the mistakes of its Agent ought not to be visited upon an innocent litigant.

20. The Applicant in remedying the proffered mistake herein above, presented the evidence that was stated to have been omitted, being the medical report in support of the ground of sickness.

21. Now that it was presented, the Tribunal was obliged to consider the same, upon perusal of the same and it was noted that the medical report makes reference to a patience known as Said Mahanga Hiribae, a male of 65 years, who is indicated to have been admitted to the medical institution on 26th December 2023 and discharged on 12th January 2024.

22. From the affidavits in support of the instant application and that dated 4th July 2024, we noted that the deponed of both affidavits is one Abdallah Gayoye Hiribae and who is not the patient named in the medical report sought to be relied upon.

23. It is important to refer to the contents of the application sought to be reviewed, the Tribunal noted from the affidavit in support of the application dated 4th July 2024 that the deponent made reference to his wife’s ilness, particularly under paragraphs 1, 8, 11 and 16 respectively, which reads;“1. I am the Director of the Applicant herein and the person in charge of the day-to-day operations of the Applicant.8. During the period under assessment and the objection, I, as a Director involved in the day-to-day operations of the appellant, was unavoidably absent as I sought medical treatment of my wife. This circumstance, compounded by my absence, may have led into misrepresentation or oversight on the assessment process.11. I wrote to the Respondent objecting to the Assessment and further informed them my wife was seeking medical treatment and was unable to respond to the previous email.16. The Respondent failed to take into account that the Director involved in the day-to-day operations of the Appellant and being unwell I was unable file the objection timely”

24. The deponent of the affidavit in support of the instant application and that dated 4th July 2024 having been indicated that he was attending to his sick wife, it was expected that the Applicant would have presented evidence in support of such an assertion.

25. A keen perusal of the medical report presented indicated that the medical review related to a male adult by the name Said Mahanga Hiribae, the Tribunal has a challenge in reconciling that the medical report presented herein relates to the wife of the deponent. Even if it were to be argued that the gender of the patient was a typographical error, then the patient’s name and repetitive reference by the author of the medical report in reference to the patient by the term “Mr. Hiribae” does not come to the aid of the Applicant’s case.

26. The Applicant made no effort to proffer an explanation and demonstrate the nexus between the Appellant, deponent and the patient in relation to the matters at hand, thus the Tribunal is not persuaded that the evidence presented before it is consistent with the Applicant’s averments.

27. To this end, the Tribunal finds that the Applicant has not demonstrated any error apparent on the face of the record, the discovery of a new and important matter or presented sufficient evidence in support of its ground for delay in the filing of its Appeal within the statutory timelines or any other reasonable ground to warrant the Tribunal muddle its decision of 6th September 2024.

28. Consequently, the Applicant’s application is unmerited and therefore fails.

Disposition 29. Based on the foregoing analysis, the Tribunal finds that the application is not merited and accordingly proceeds to make the following Orders. that: -a.The application dated 23rd December 2024 be and is hereby disallowed; and,b.No orders as to costs.

30. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF FEBRUARY 2025MUTISO MAKAU - CHAIRPERSONELISHAH NJERU - MEMBERBERNADETTE GITARI - MEMBER