https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/194

REPUBLIC OF KENYA IN THE TAX APPEALS TRIBUNAL AT NAIROBI TAT NO E435 OF 2025 EAST AFRICA DEVELOPMENT ENGINEERING LIMITED APPLICANT -VERSUS- COMMISSIONER OF DOMESTIC TAXES RESPONDENT BACKGROUND RULING 1. The Applicant filed a Notice of Motion dated 10th July 2025 and supported by affidavit sworn by Isaac Juma Kakai, the Applicant’s tax agent, seeking the following Order: 1. That the Respondent's Statement of Facts, Response, and all annexed documents filed and/or served in this Appeal be struck out and expunged from the Tribunal's record for being filed and served out of time contrary to Rule 10 of the Tax Appeals Tribunal (Procedure) Rules, 2015. 2. That the Tribunal do issue directions that the Appeal shall proceed to hearing and determination without reference to the Respondent's Statement of Facts or Response. 3. That the costs of this Application be provided for. 2. The Application is based on the following grounds: 3. That the Applicant served its Appeal documents on the Respondent on as evidenced in the Tribunal record. 4. That under Rule 10 of the Tax Appeals Tribunal (Procedure) Rules, 2015, the Respondent was required to file and serve its Response within thirty (30) days of service. 1. That the Respondent deliberately served its Response upon the Applicant after fifty-four (54) days, far beyond the stipulated time limit, without seeking extension or leave of the Tribunal. 2. That the Respondent's Response bears a backdated date, evidently intended to create the false impression of compliance with the statutory timeline, thereby constituting abuse of process and deception. The deliberate backdating and misleading filing by the Respondent is a grave abuse of process and an affront to constitutional values of integrity, transparency, and fairness under Articles 10 and 47 of the Constitution. Kenyan courts have consistently struck out pleadings and documents filed with deceptive intent to safeguard the integrity of the judicial and quasi- judicial process. 3. That the Tribunal has no jurisdiction to admit or entertain documents filed in violation of mandatory timelines without lawful extension. 4. That failure to strike out the said Response would grossly prejudice the Applicant's right to fair hearing under Article 50(1) and fair administrative action under Article 47 of the Constitution. 5. That it is in the interest of justice and procedural fairness that the Respondent's Statement of Facts, Response, and documents be struck out and the Appeal proceed without reference to them. 6. When the matter came up for mention on 18th July 2025, the Tribunal directed the Respondent to file and serve its response by close of business on 18th July 2025. However, the Respondent’s response was not on record as at the time of making this ruling therefore the matter proceeded ex-parte the Respondent. Analysis and Findings 1. Whereas the Respondent’s response was not on record, it does not mean that the application ought to be allowed automatically. The Tribunal has to examine whether the application is meritorious. 2. The Applicant prayed that the Respondent’s pleadings be struck out on the basis that they were filed out of time without leave. 3. The Tribunal agrees with the Applicant that documents filed out of time without leave ought to be struck out. The question then is whether the Applicant has demonstrated that the Respondent’s pleadings were filed out time. 4. Section 13(5) of the Tax Appeals Tribunal Act Cap. 469A (hereinafter referred to as ‘TATA’) requires the taxpayer to serve its pleadings upon the Respondent within two (2) days. To be précise, the said subsection 5 provides as hereunder: *“(5) An appellant shall serve a copy of the appeal on the Commissioner* # within two days after giving notice of appeal to the Tribunal.” 1. The Applicant has to demonstrate that it complied with section 13(5) of the TATA. It has to demonstrate this by filing affidavit of service demonstrating when it effected service upon the Respondent. The Affidavit of service was not on record. 2. It is vital to note that the Applicant did not even state the date it served upon the Respondent the appeal documents. Instead, the Applicant at paragraph 4 of the Notice of motion and paragraph 3 of the supporting affidavit stated as follows: # ‘‘4. That the Appellant served its Appeal documents on the Respondent on [insert date], as evidenced in the Tribunal record.’’ *‘‘3. THAT the Appellant lodged its appeal before this Honourable Tribunal and duly served the appeal documents, including the Notice of Appeal, Memorandum of appeal, and statement of facts upon the Respondent on* *[insert date], as evidenced by the Tribunal record and affidavit of service*.’’ 1. The Tribunal notes that whereas the Applicant at paragraph 3 of the supporting affidavit alludes to an affidavit of service, such affidavit of service was not on record. For avoidance of doubt, an affidavit of service must be accompanied with evidence of service which is missing in the Applicant’s application. 2. The power to strike out pleadings has been described by the Court of Appeal as a draconian process. The Court of Appeal in the case of Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR) had the following to say about striking out pleadings: # ‘‘It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The flip side is that it is also unfair to drag a person to the seat of justice when the case brought against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations. *…Striking out a pleading, though draconian, the court will, in its discretion resort to it, where, for instance, the court is satisfied that the pleading has been brought in abuse of its process or where it is found to be scandalous, frivolous or vexatious.’’* 1. Further, In Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa Civil Appeal No. 54 of 1999 the Court held as follows: # ‘‘...Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact... A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment.” 1. In the absence of evidence showing the lateness of the Respondent’s filing of its pleadings, the Tribunal declines to exercise the power to strike out the Respondent’s pleadings. DISPOSITION 1. In the circumstances, the Tribunal proceeds to make the following orders: 2. The Application be and is hereby dismissed; 3. No orders as to costs. 4. It is so ordered. DATED and DELIVERED at NAIROBI this …22nd…. day of …August…. 2025 ROBERT M. MUTUMA CHAIRMAN ELISHAH N. NJERU GLORIA A. OGAGA MEMBER MEMBER EUNICE N. NG’ANG’A JIMMY M. MALLA MEMBER MEMBER