https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/85

Mogona v Commissioner of Domestic Service (Tax Appeal E692 of 2025) [2026] KETAT 85 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KETAT 85 (KLR) Republic of Kenya In the Tax Appeal Tribunal Tax Appeal E692 of 2025 RO Oluoch, Chair, AM Diriye & E Komolo, Members June 26, 2026 Between Elijah Momanyi Mogona Appellant and Commissioner Of Domestic Service Respondent Judgment Background 1.The Appellant is an individual Kenyan taxpayer registered. 2.The Respondent is the principal officer appointed under Section 13 of the Kenya Revenue Authority Act. The Kenya Revenue Authority is an agency of the Government of Kenya mandated with the duty of collection and receipting of all tax revenue, and the administration and enforcement of all tax laws set out in parts 1 & 2 of the First Schedule to the Act, including assessing, collecting, and accounting for all tax revenues in accordance with those laws. 3.On 14th December 2021 and 30th September 2021, the Respondent issued the Appellant with additional income and VAT assessments. 4.On 26th July 2023, the Appellant filed its Objection Application against the additional assessments. 5.On 22nd September 2023, the Respondent issued its Objection Decision confirming the additional assessments. 6.Aggrieved by the by Objection Decision, the Appellant then lodged this Appeal vide its Notice of Appeal dated 30th June, 2025. The Appeal 7.The Appeal is premised on the Appellant’s Memorandum of Appeal dated 12th August, 2025 raising the following grounds of appeal: -a.The Respondent erred in law and fact in making a decision without communicating and or transmitting the same to the Appellant to enable his rights under the Tax Procedure Act.b.The Respondent erred in law in indicating in its system that the Objection Decision was made on 9th December 2023 only for it to turn around and state that the same was made in September 2023 whereas the objection was made on 16th June, 2022.c.The decision of the Respondent having been made on 19th December 2023 amounts to no decision and the objection is deemed to have succeeded for the decision was made outside the sixty (60) days period allowed by the law.d.The conduct of the Respondent is unjust and untenable as it is meant to violate the Appellant’s rights under the Constitution.e.The decision is as a whole unjust and untenable. Appellant’s Case 8.The Appellant’s case is based on its Statement of Facts dated 12th August 2025. The Appellant also filed its Written Submissions dated 12th May, 2026 urging that its Appeal be allowed. 9.The Appellant averred that on 16th June 2022, he filed its objection to the Respondent on tax assessment, and he did not receive any Objection Decision and proceeded on the basis that the objection had succeeded since there was no decision made within sixty (60) days. 10.The Appellant further averred that on the Respondent’s iTax system, the objection is captured as having been made on 26th July 2022 and an Objection Decision made on 19th December 2023. 11.It is the Appellant’s case that in early June 2025, he sought tax compliance certificate to enable him apply for a job in the Judicial Service Commission only to learn that an Objection Decision had been made vide a letter dated 22nd September 2023, which communication never reached him and was dated more than one (1) year following the objection. 12.The Appellant contended that the objection having been made on 16th June 2022, the Objection Decision ought to have been made on 15th or 16th August 2022. 13.The Appellant largely reiterated the above contentions in his written submissions. Appellant’s Prayers 14.The Appellant prayed to the Tribunal for the following orders: -a.The Respondent’s Objection Decision be set aside.b.A declaration that the Objection Decision was issued outside the requisite time and is therefore incompetent and untenable.c.Cost of the Appeal to Appellant. Respondent’s Case 15.In opposition to the Appeal, the Respondent filed its Statement of Facts dated 19th September, 2025 and Written Submissions dated 8th May, 2026. 16.The Respondent averred that contrary to allegations that the Appellant was not notified of the Objection Decision, the decision was sent to his official email momanyi.elijah@yahoo.com on 22nd September 2023. 17.The Respondent further averred that it is a stranger to the document attached by the Appellant and referred to as Objection Application dated 25th May 2022 as the same was never received by the Respondent as confirmed by the fact that the alleged stamp by the Respondent is not signed. 18.The Respondent contended that the Appellant did not provide satisfactory evidence to justify objecting out of time to the assessments as required by Section 51(7) of the Tax Procedures Act. As such, the Appellant’s objection application was declined and the assessed taxes together with accrued penalty and interest is deemed due and payable. 19.The Respondent submitted that the Appellant did not provide any evidence to show or demonstrate that the assessment is erroneous or excessive despite being given several opportunities to support his position. 20.The Respondent contended that the Appellant at the objection date failed to avail the detailed documentation to support its various objection grounds as per the requirements of Section 51(3) of the Tax Procedures Act. Respondent’s Prayers 21.The Respondent prayed to the Tribunal for the following orders: -a.The Appeal lacks merit and should be dismissed with costs.b.The Respondent’s invalidation be deemed proper in law. Issues for Determination 22.The Tribunal having considered the parties' pleadings, submissions and documents filed before it is of the view that the following issues fall for its determination: -i.Whether the Appeal is valid.ii.Whether the Respondent’s Additional Assessments of the Appellant are Justified and Proper in Law. Analysis and Determination i. Whether the Appeal is Valid. 23.The instant Appeal is premised on the Respondent’s Objection Decision dated 22nd September 2023, which confirmed additional assessments against the Appellant. The Respondent justified its decision on the fact that the Appellant neither supported the grounds for his late objection application, nor validated his objection in accordance with the law. 24.On its part, the Appellant submitted that the Respondent’s Objection was invalid as it was made outside the stipulated timelines. The Appellant averred that on 16th June 2022, he filed his objection to the Respondent on tax assessment, and he did not receive any Objection Decision and proceeded on the basis that the objection had succeeded since there was no decision made within sixty (60) days. 25.The uncontroverted evidence on record before the Tribunal shows that the Appellant filed its Objection Application on 26th July, 2023. This is supported by the iTax objection application acknowledgement receipt and email correspondence on record. After a series of correspondences between the parties, the Respondent issued its Objection Decision on 22nd September 2023, and the same was emailed to the Appellant on 25th September 2023 as supported by email evidence on record. 26.The Tribunal is cognizant that Section 51(4A) of the Tax Procedures Act obligates the Respondent to render an Objection Decision within sixty (60) days of an objection application.“Section 51(4A) Despite subsection (3), where a taxpayer fails to provide the information required under subsection (4) or fails to provide the information within the specified period, the Commissioner may make an objection decision within sixty days after the date on which the notice of objection was lodged.” (emphasis added). 27.It follows, therefore, that in the instant Appeal, the Respondent rendered the Objection Decision within statutory timelines, and the Appellant’s contention to the contrary cannot stand. Thus, the Appeal is valid. ii. Whether the Respondent’s Additional Assessments of the Appellant are Justified and Proper in Law. 28.On whether the additional assessment is proper and justified, the Tribunal notes that the Respondent made the following findings in its Objection Decision dated 22nd September 2023 that led to the confirmation of the assessments: -a.The Appellant failed to provide his grounds of objection and supporting documents at the time of filing the objection.b.The Appellant did not provide supporting documentation to support his grounds of objection as required by Section 51(3)(c) of the TPA 2015.c.The Appellant did not respond to emails dated 1st August 2023, and 4th September 2023 requesting him to regularize his objection. 29.The Tribunal notes from the record that the Appellant indeed lodged his Late Objection Application on 26th July, 2023 against the additional assessments of 30th September 2021. Vide email of 8th January, 2023, the Respondent informed the Appellant of his late objection and invited him to regularize the same in accordance with Section 51(7) of the Tax Procedures Act. 30.Section 51(2), (6) and (7) of the Tax Procedures Act provide strict timelines and grounds for filing of objections and late objections by taxpayers.S. 51(2)A taxpayer who disputes a tax decision may lodge a notice of objection to the decision, in writing, with the Commissioner within thirty days of being notified of the decision.S. 51(6)A taxpayer may apply in writing to the Commissioner for an extension of time to lodge a notice of objection.(7)The Commissioner shall consider and may allow an application under subsection (6) if—(a)the taxpayer was prevented from lodging the notice of objection within the period specified in subsection (2) because of an absence from Kenya, sickness or other reasonable cause; and(b)the taxpayer did not unreasonably delay in lodging the notice of objection. (emphasis added) 31.In the instant Appeal, the Appellant listed its grounds for late objection as “other reasonable cause – no response from earlier submitted docs”. Whilst this ground is generally broad, there is nothing on record to show that the Appellant either submitted some documents earlier or filed documents to support its grounds for late objection. There is also nothing on record to show that the Appellant supported its objection with relevant documents. The Appellant has a mandatory statutory duty to file his objection within 30 days or sufficiently support his grounds for late objection. 32.In Equity Group Holdings Limited vs Commissioner of Domestic Taxes [2021] eKLR, the High Court Mativo J. (as he then was) affirmed this position in the following terms: -60.Section 51(11) of the TPA is couched in peremptory terms. Having correctly found that the decision was made after the expiry of 60 days, the TAT had no legal basis to proceed as it did and to invoke article 159(2) (d). First, there was no decision at all. The decision had ceased to exist by the operation of the law. Second, the provisions of section 51 (11)(b) had kicked in. The Objection had by dint of the said provision been deemed as allowed. Third, the TAT had no discretion to either extent time or to entertain the matter further. Fourth, discretion follows the law and a Tribunal cannot purport to exercise discretion in clear breach of the Law.63.The TAT manifestly erred in law by confusing substantive with procedural law. Article 159(2)(d) of the Constitution in clear terms talks about procedural technicality. A Statutory edict is not procedural technicality. It is a law which must be complied with. Parliament in its wisdom expressly and in mandatory terms provided the consequence of failing to render a decision within 60 days. The Objection is deemed to be allowed. That being the law, the Appellant’s Objection stood allowed as a matter of law the moment the Commissioner of Domestic Taxes failed to render his decision within the 60days. This being the correct legal position, it is my finding that the 1st appeal succeeds.” 33.The Tribunal further reiterates that it is now settled law that the duty to make full and accurate disclosures in tax matters vests with the Appellant. In other words, the burden of proof in tax matters, in the first instance, rests with the Appellant. This is the import of Section 56 (1) of the TPA, and Section 30 of TAT ActIn any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect 34.In this regard, the Tribunal reiterates the authority in Commissioner of Investigations and Enforcement vs Kidero (Income Tax Appeal E028 of 2020 eKLR, where it was held that:“…the duty imposed on the taxpayer to keep records and the provisions on the burden of proof all go to support the Kenyan tax collection regime which is centered on a system of self-assessment. This system relies on the taxpayer making full and good faith disclosures in their tax declaration and affairs and hence empower the Commissioner to demand documents from time to time when investigating the affairs of a taxpayer…” 35.Accordingly, in this Appeal, the Tribunal is constrained to find and hold that the Appellant neither lodged its objection within statutory timelines nor sufficiently supported its ground for late objection. Disposition 36.The upshot of the foregoing analysis is that the Appeal lacks merit and the Tribunal shall proceed to issue the following orders: -a.The Appeal be and is hereby dismissed.b.Each Party is to bear its own costs. 37.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS ………26TH ...……. DAY OF ……JUNE..…… 2026..........................……………………….DR. RODNEY ODHIAMBO OLUOCHCHAIRPERSON.…..….……………………. ..….……………………….ABDULLAHI DIRIYEMEMBER.…..….……………………. ..….……………………….DR. ERICK KOMOLOMEMBER